[House Report 115-146]
[From the U.S. Government Publishing Office]
115th Congress } { Rept. 115-146
HOUSE OF REPRESENTATIVES
1st Session } { Part 1
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VET PROTECTION ACT OF 2017
_______
May 23, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Roe of Tennessee, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1461]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 1461) to amend title 38, United States Code, to
require the Secretary of Veterans Affairs to submit an annual
report to Congress relating to the use of official time by
employees of the Department of Veterans Affairs, to limit the
instances in which official time may be granted for certain
purposes to employees of the Department, and for other
purposes, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 4
Background and Need for Legislation.............................. 4
Hearings......................................................... 9
Subcommittee Consideration....................................... 9
Committee Consideration.......................................... 9
Committee Votes.................................................. 11
Committee Correspondence......................................... 15
Committee Oversight Findings..................................... 17
Statement of General Performance Goals and Objectives............ 17
Earmarks and Tax and Tariff Benefits............................. 17
Committee Cost Estimate.......................................... 17
Budget Authority and Congressional Budget Office Estimate........ 17
Federal Mandates Statement....................................... 18
Advisory Committee Statement..................................... 18
Constitutional Authority Statement............................... 19
Applicability to Legislative Branch.............................. 19
Statement on Duplication of Federal Programs..................... 19
Disclosure of Directed Rulemaking................................ 19
Section-by-Section Analysis of the Legislation................... 19
Changes in Existing Law Made by the Bill as Reported............. 21
Dissenting Views................................................. 29
Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Veterans, Employees, and Taxpayers
Protection Act of 2017'' or the ``VET Protection Act of 2017''.
SEC. 2. LABOR MANAGEMENT IN DEPARTMENT OF VETERANS AFFAIRS.
(a) In General.--Chapter 7 of title 38, United States Code, is
amended by adding at the end the following new subchapter:
``SUBCHAPTER III--LABOR MANAGEMENT
``Sec. 741. Records on use of official time
``(a) Tracking of Official Time.--The Secretary shall track the use
of official time by employees of the Department of Veterans Affairs in
a manner that accounts for such time accurately and to a specific
degree without the use of estimates or ranges of time.
``(b) Annual Report.--(1) Not later than December 31 of each year,
the Secretary shall submit to the Office of Personnel Management and
the Committees on Veterans' Affairs of the House of Representatives and
the Senate a report on the use of official time by employees of the
Department during the most recently ended fiscal year.
``(2) Each report under paragraph (1) shall include, with respect to
the fiscal year covered by the report, the following information:
``(A) The total amount of official time granted to employees.
``(B) The total amount of official time expended and the
amount of official time expended per employee for term
negotiations, mid-term negotiations, general labor-management
relations, and dispute resolution.
``(C) The specific types of activities or purposes for which
official time was granted, and the impact which the granting of
such official time for such activities or purposes had on the
operations of the Department.
``(D) The total number of employees to whom official time was
granted, and, of that total, the number who were not engaged in
any activities or purposes except activities or purposes
involving the use of official time.
``(E) The total annual salary, job title, and amount of
official time afforded to any employee.
``(F) A description of any room or space designated at the
Department where official time activities will be conducted,
including the square footage of any such room or space.
``(G) A list of any employee granted a waiver under section
742(d) and justification for each such waiver.
``(c) Definition of Official Time.--For purposes of this section, the
term `official time' means any period of time--
``(1) which may be granted to an employee under chapter 71 of
title 5 (including a collective bargaining agreement entered
into under such chapter) or chapter 74 of this title to perform
representational or consultative functions; and
``(2) during which the employee would otherwise be in a duty
status.
``Sec. 742. Limitations on use of official time for certain purposes
and individuals
``(a) Political Activities and Lobbying.--Notwithstanding section
7131 of title 5 or any other provision of law, any employee of the
Department may not use official time to carry out political activities
or activities relating to lobbying.
``(b) Prohibition on Use of Official Time by Certain Employees.--The
following employees of the Department may not use official time for any
purpose:
``(1) Any employee appointed under section 7401(1).
``(2) Any employee with an annual rate of basic pay equal to
or greater than $100,000.
``(3) Any employee who is serving a probationary period.
``(c) Limitation on All Employees.--Any employee of the Department
not covered by subsection (b) may spend no more than 25 percent of the
time such employee would otherwise be in a duty status on official
time.
``(d) Waiver.--(1) The Secretary may waive the requirements of
subsection (b) or (c) with respect to an employee of the Department if
the Secretary certifies, in writing, that the waiver is reasonable,
necessary, and in the best interests of veterans.
``(2) The authority provided to the Secretary under this subsection
shall not be subject to bargaining under this title or chapter 71 of
title 5, and the exercise of, or failure to exercise, such authority
shall not be an unfair labor practice under this title or such chapter.
``(e) Definition of Official Time.--For purposes of this section, the
term `official time' has the meaning given that term in section 741(c).
``Sec. 743. Termination of collection of dues
``Notwithstanding section 7115 of title 5, any exclusive bargaining
agreement entered into pursuant to chapter 71 of such title by the
Department shall provide that an employee of the Department may
terminate a voluntary allotment for the payment of dues at any time.
Any deductions for dues made pursuant to such allotment shall cease
beginning on the first pay period after the termination is made.''.
(b) Applicability.--Sections 742 and 743 of title 38, United States
Code, as added by subsection (a), shall apply with respect to any
collective bargaining agreement entered into before, on, or after the
date of enactment of this Act.
(c) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by adding at the end the following:
``subchapter iii--labor management
``741. Records on use of official time.
``742. Limitations on use of official time for certain purposes and
individuals.
``743. Termination of collection of dues.''.
SEC. 3. REQUIRED PROBATIONARY PERIOD FOR NEW EMPLOYEES OF DEPARTMENT OF
VETERANS AFFAIRS.
(a) Probationary Period.--
(1) In general.--Chapter 7 of title 38, United States Code,
is further amended by inserting after section 717 the following
new section:
``Sec. 719. Probationary period for employees
``(a) In General.--Notwithstanding sections 3321 and 3393(d) of title
5, the appointment of a covered employee shall become final only after
such employee has served a probationary period of 2 years.
``(b) Covered Employee.--In this section, the term ``covered
employee'--
``(1) means any individual--
``(A) appointed to a permanent position within the
competitive service at the Department; or
``(B) appointed as a career appointee (as that term
is defined in section 3132(a)(4) of title 5) within the
Senior Executive Service at the Department; and
``(2) does not include any individual with a probationary
period prescribed by section 7403 of this title.
``(c) Permanent Hires.--Not later than 90 days before the expiration
of a covered employee's probationary period under subsection (a), the
supervisor of the employee shall determine whether the appointment
becomes final based on regulations prescribed for such purpose by the
Secretary.
``(d) Application.--With respect to any individual described in
subsection (b)(1)(A) and to whom this section applies, sections 7501(1)
and 7511(a)(1)(A)(ii) of title 5 shall be applied to such individual by
substituting `completed 2 years' for `completed 1 year' in each
instance it appears.''.
(2) Clerical and conforming amendments.--
(A) Clerical.--The table of sections at the beginning
of such chapter, as amended by section 2, is further
amended by inserting after the item relating to section
717 the following new item:
``719. Probationary period for employees.''.
(B) Conforming.--Title 5, United States Code, is
amended--
(i) in section 3321(c)--
(I) by striking ``Service, or'' and
inserting ``Service,''; and
(II) by inserting at the end before
the period the following: ``, or any
individual covered by section 719 of
title 38'';
(ii) in section 3393(d), by inserting at the
end before the period the following: ``or
section 719 of title 38'';
(iii) in sections 7501(1) and
7511(a)(1)(A)(ii), by inserting ``or section
719 of title 38'' after ``title 10'' in each
instance it appears; and
(iv) in section 7541(1)(A)--
(I) by striking ``title or'' and
inserting ``title,''; and
(II) by inserting at the end before
the semicolon the following: ``, or
section 719 of title 38''.
(b) Application.--Section 719 of title 38, United States Code, as
added by subsection (a)(1), shall apply to any covered employee (as
that term is defined in subsection (b) of such section 719, as so
added) appointed after the date of the enactment of this Act.
Purpose and Summary
H.R. 1461, the ``Veterans, Employees and Taxpayers
Protection Act of 2017'' or the ``VET Protection Act of 2017,''
was introduced by Representative Jodey Arrington of Texas,
Chairman of the Subcommittee on Economic Opportunity of the
House Committee on Veterans' Affairs, on March 9, 2017. H.R.
1461, as amended, would require the Secretary of the U.S.
Department of Veterans Affairs (VA) to track VA employees' use
of official time on activities authorized by statute and by
collective bargaining agreements and submit an annual report on
its use to Congress. The bill would also prohibit doctors,
registered nurses, physician assistants and other healthcare
providers and high level VA employees from using any official
time, and would restrict any other VA employee from spending
more than 25% of their time on official time. The bill would
also authorize VA employees to stop paying union dues at any
time. Finally, the probationary period for all new VA employees
would be expanded to two years.
Background and Need for Legislation
Section 1. Short title
This section provides the short title of the bill.
Section 2. Labor Management in Department of Veterans Affairs
The Federal Service Labor-Management Statute authorizes
federal employees to join public sector unions and to
collectively bargain with agency management. This statute also
specifically authorizes the use of official time for unions,
which allows an employee to work on approved union activities
and bargaining while receiving their federal pay and benefits
as if they are in a duty status. The statute authorizes the use
of official time for the negotiation of collective bargaining
agreements, attendance at impasse proceedings, and
participation in other activities of the Federal Labor
Relations Authority.\1\ Unions and agencies can also negotiate
the use of official time for other purposes under the condition
that both parties agree it is ``reasonable, necessary, and in
the public interest.''\2\ Title 5 of the United States Code
(U.S.C.) restricts the use of official time for any internal
union business including ``the solicitation of membership,
elections of labor organization officials, and collection of
dues,''\3\ which must be performed while the employee is in a
non-duty status.
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\1\Section 7131(a) and (c) of title 5 U.S.C.
\2\Section 7131 (d) of title 5 U.S.C.
\3\Section 7131 (b) of title 5 U.S.C.
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VA currently has five national master collective bargaining
agreements, which, among other items, set the parameters for
use of official time by union officials; there are also
hundreds of agreements at the local level that also dictate the
use of official time. Most local agreements provide a bank of
time that can be used for official time at each facility while
also allowing a certain number of VA employees to spend 100% of
their time on official time.
Since official time was first authorized in the Civil
Service Reform Act of 1978 (P.L. 95-454), there have been
multiple reports that have criticized the federal government
for its inability to track the use of official time across
federal agencies. In 1979, the U.S. Government Accountability
Office (GAO) found that 18 of the 26 bargaining units at four
agencies had no record of official time usage and recommended
that annual reports on its use be issued by the U.S. Office of
Personnel Management (OPM).\4\ In 1996, GAO completed a report
on official time that found, ``VA did not have a time-reporting
system that would provide the total number of hours used for
union activities, the cost of the hours, or the number of
employees using time for union activities for the
Department.''\5\
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\4\U.S. Government Accountability Office, ``Inadequate
Recordkeeping on Official Time Used for Representational Functions,''
FPCD-79-77: Published: Sep 17, 1979. http://www.gao.gov/products/GAO/
FPCD-79-77.
\5\U.S. Government Accountability Office, ``Federal Labor
Relations: Official Time Used for Union Activities,'' T-GGD-96-191:
Published: Sep 11, 1996. http://www.gao.gov/assets/110/106634.pdf.
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On February 16, 2017, the Subcommittee on Economic
Opportunity conducted a joint oversight hearing with the
Subcommittee on Government Operations of the House Committee on
Oversight and Government Reform, entitled ``The Use of Official
Time for Union Activities at the Department of Veterans
Affairs.'' This hearing highlighted the most recent GAO report
that was released in February of 2017 on official time, which
echoed previous GAO reports finding VA's record keeping as
``inconsistent'' and ``not reliable.''\6\ GAO also found that
VA does not require a standardized way of tracking official
time and ``. . . allows facilities to use written records,
estimates, samples, or surveys of official time hours used, or
any combination of these methods to determine the amount of
official time used by employees at their facility.''\7\
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\6\U.S. Government Accountability Office, ``UNION ACTIVITIES: VA
Could Better Track the Amount of Official Time Used by Employees.''
GAO-17-105: Published January 24, 2017 https://www.gao.gov/assets/690/
682250.pdf.
\7\Ibid.
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The Committee believes that it is time for VA, to heed four
decades' worth of GAO recommendations and accurately track
official time. It defies logic that VA would continue to allow
the use of ``estimates and samples'' to track taxpayer-funded
time that is being spent on union-centered activities. The
Committee expects, and believes that the average taxpayer would
also expect, more transparency about where tax dollars are
going when it is funding activities that do not directly serve
veterans. Therefore, section 2 of this bill would amend chapter
7 of title 38 U.S.C., and would create a new section 741, which
would require the VA Secretary to accurately track the use of
official time at VA and provide an annual report to the House
and Senate Committees on Veterans' Affairs on its use. The
report would include the total amount of official time that VA
authorized in the previous fiscal year, information on the
employees who are using official time, and a formal description
of any room or space provided to the union by the Department.
During the aforementioned February 2017 joint oversight
hearing on official time, the subcommittees unveiled
information, which had been previously provided by VA, that
indicated that in fiscal year (FY) 2015, VA had almost 2,000
employees who were on some amount of official time and that 344
of these employees spent 100% of their time on official time
instead of performing the work they were hired to do. Of these
344 employees who were on 100% official time, over 50% were
originally hired by VA to provide direct patient care or
process veterans' disability benefits. The data also included
numerous highly paid and highly skilled employees, including
doctors, nurses and senior staff, making over $100,000 a year
in their base salary while spending part or all of their time
on union activities as opposed to the occupation and duties
they were hired for. The total cost to VA for these employees
in salaries alone was $22,135,112 in FY2015.
While the Committee understands that official time can be
potentially valuable if used appropriately, we believe that
allowing senior staff and healthcare clinicians to be on
official time, at the expense of providing care to and serving
veterans, is not ``reasonable, necessary, and in the public
interest.'' Employees are not hired by VA to conduct union
business; they are hired to fulfill the mission of the
Department by providing benefits and services to veterans.
While the recent GAO report found that some managers saw some
value in official time, they also cited difficulty providing
benefits and services to veterans because they have to re-
schedule or backfill critical positions to cover those
employees on official time.\8\
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\8\Ibid.
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To address this issue, section two of the bill would place
reasonable restrictions on the use of official time at the
Department. Specifically, the legislation would supersede any
authorities included in current collective bargaining
agreements related to official time and would prohibit VA
physicians, registered nurses, physician assistants, dentists,
podiatrists, chiropractors, optometrists, probationary
employees, or any other employee with a base salary of $100,000
or greater, from using any official time for any purpose.
Additionally, the bill would restrict every other VA employee
to spending no more than 25% of their time on official time.
This change to the law would result in no employee spending
100% of their time on official time. Both of these restrictions
would be waivable by the Secretary if he or she certifies that
such a waiver is reasonable, necessary, and in the best
interest of veterans. The use of these waivers is at the sole
discretion of management and would not be subject to collective
bargaining or claims of unfair labor practices. The Secretary
would be required to include a list and justification for each
waiver in the official time report that would be annually sent
to Congress as required by this section.
The Committee believes that these are reasonable
restrictions, which put the mission of the Department and the
needs of veterans first, while still not restricting the
overall amount of official time that is negotiated between VA
and its bargaining units. This section would also clarify that
official time is not used to carry out political activities or
lobbying. This would ensure that official time is being use for
its intended purpose of improving management-labor relations
and not for political or partisan reasons. The language would
not restrict employees' first amendment rights but would simply
state that if they choose to lobby or their union then they
must do so while in a non-duty status.
Finally, this section would also provide greater
flexibility to employees for when they choose to join or leave
a union at VA. Currently, VA's collective bargaining agreements
allow for members to join the union at any point and require VA
to take union dues out of an employee's paycheck each pay
period and send the funds directly to the union. However, these
agreements generally limit when an employee can elect to
terminate this collection of union dues, therefore making it
difficult for the employee to leave the union. For example,
VA's current agreement with the American Federation of
Government Employees (AFGE) requires that if an employee wants
to terminate their dues collections then the form that is
required to be filed must ``. . . be submitted to the local
union during the 10 calendar days ending on the anniversary
date of his/her original allotment.''\9\ Ultimately, this
restrictive practice, results in VA employees being able to
join the union at any point but severely limiting when they can
actually leave the union.
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\9\U.S. Department of Veterans Affairs and American Federation of
Government Employees Master Agreement, March 2011, Article 45 Section
6. https://www.va.gov/LMR/docs/Agreements/AFGE/
Master_Agreement_between_DVA_and_AFGE-fin_March_2011.pdf.
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The Committee believes that this practice should be changed
to allow freedom of choice for all employees to join or leave
any bargaining unit at any time. The current restrictions do
not appear to benefit the employee but, instead, benefit the
union and their financial viability by preventing employees
from stopping the deduction of union dues from their paychecks.
Therefore, this section would supersede any current collective
bargaining agreements and would allow any eligible employee to
join or leave any union at any point.
Section 3. Required probationary period for new employees of Department
of Veteran Affairs
The federal hiring process is very complex and can take
several months. The probationary period for federal employees
is intended to be a final checkpoint in a new employee
screening process. When an individual enters employment at VA,
and across the federal government, he or she is put on a
probationary period at the beginning of their employment for
one year\10\ (except at certain agencies such as the Department
of Defense, which requires a two-year probationary period).
Physicians and other clinicians at VA, however, are considered
to be part of the excepted service and are required to undergo
a two-year probationary period. An employee's appeal rights are
greatly diminished during their probationary period, as it is
meant to be a period of time during which supervisors can fully
assess the employee's capabilities and aptness for the position
before that employee becomes a full-fledged civil servant with
full civil service protections. According to a Merit Systems
Protection Board report entitled, ``A Call to Action: Improving
First-Level Supervision of Federal Employees,'' individuals
need to demonstrate during their probationary period ``why it
is in the public interest for the government to finalize an
appointment to the civil service.''\11\ The Committee believes
that this probationary period is vital to ensuring that VA is
hiring only the most well-equipped employees. Many reports have
illustrated this as an issue across the federal government, as
supervisors do not use this time to thoroughly review an
individual's performance or assess an employee's potential
future success at the Department.
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\10\Probationary periods are required by statute in section
3321(a)(1) of title 5 U.S.C. By regulation, OPM has provided for a one
year probationary period in 5 C.F.R. Sec. 315.801(a).
\11\U.S. Merit Systems Protection Board, ``A Call to Action:
Improving First-Level Supervision of Federal Employees'' (Washington,
D.C.: May 2010).
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The Committee also believes that the current one-year
probationary period is often not sufficient enough to
accurately assess a new employee's performance and conduct.
According to a February 2015 GAO report, the supervisor often
``. . . has not had enough time to observe the individual's
performance in all critical areas of the job.''\12\ For
example, training veterans claim examiners can take two to
three years. Attempting to accurately measure an employee's
ability within one annual performance assessment cycle is
nearly unobtainable. The Committee believes that such a small
window to fully assess a new employee's potential can lead to
underperformance in the future, which can affect the services
provided to veterans. The GAO report also found that many
agencies have utilized extended probationary periods for their
employees beyond the OPM-required year to address these issues
and to enhance the quality of their workforce. Similarly, the
Committee believes that VA needs to have a longer probationary
period to ensure that only highly qualified and motivated
employees continue employment at the Department.
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\12\U.S. Government Accountability Office ``Federal Workforce:
Improved Supervision and Better Use of Probationary Periods are Needed
to Address Substandard Employee Performance,'' http://www.gao.gov/
assets/670/668339.pdf.
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In addition to the need for a longer probationary period,
it is essential that VA supervisors are aware of when an
employee's probationary period is about to conclude, and when
they will then be considered a full-time employee with expanded
civil service protections and appeal rights. The GAO report
discussed the need for, and some agencies have already
instituted, an employee's supervisor to make an affirmative
decision to retain the employee beyond their probationary
period. The Partnership for Public Service, a smart government,
nonpartisan think-tank, articulated the need for a supervisor's
affirmative decision on an employee's continued employment to
the Committee in numerous meetings. Additionally, they provided
support for this need in their testimony before the Senate
Veterans' Affairs Committee by stating, ``As an employee's
probationary period is coming to a close, we believe managers
should be required to make an affirmative decision as to
whether the individual has demonstrated successful performance
and should continue on past the probationary period.''\13\ Due
to the fact that it is much more difficult to remove an
underperforming employee once they have completed their
probationary period, the Committee believes that it is
important that a supervisor perform a final review at the end
of this period, and make a decision on the individual's
performance and capability for continued employment within VA.
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\13\Testimony of Max Stier, President and CEO Partnership for
Public Service, during a hearing entitled ``Pending Healthcare and
Benefits Legislation,'' before the Senate Committee on Veterans'
Affairs, June 24, 2015. http://www.veterans.senate.gov/imo/media/doc/
PPS%20Stier%20Testimony%206.24.15.pdf.
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Section 3, therefore, would amend chapter 7 of title 38,
U.S.C., to extend the probationary period for all new
competitive service employees within VA to two years. This
section would also require an employee's supervisor to make an
affirmative decision 90 days prior to the end of the employee's
probationary period as to whether the individual's appointment
within VA should become permanent. The Committee believes this
will further hold the Department's employees and supervisors
accountable, as well as ensure a more qualified and highly
performing workforce.
Hearings
On February 16, 2017, the Subcommittee on Economic
Opportunity and the Subcommittee on Government Operations of
the House Committee on Oversight and Government Reform
conducted an oversight hearing, entitled ``The Use of Official
Time for Union Activities at the Department of Veterans
Affairs.'' The following witnesses testified:
Ms. Cindy Brown Barnes, Director of Education,
Workforce and Income Security, U.S. Government
Accountability Office; Mr. J. David Cox, Sr., National
President, American Federation of Government Employees,
AFL-CIO; Mr. Trey Kovacs, Policy Analyst, Competitive
Enterprise Institute; and Ms. Kimberly Perkins McLeod,
Acting Executive Director for Labor Management
Relations, U.S. Department of Veterans Affairs.
On March 21, 2017, the Subcommittee on Economic Opportunity
conducted a legislative hearing on H.R. 1461. The following
witnesses testified:
Ms. Kimberly Perkins McLeod, Acting Executive
Director for Labor Management Relations, U.S.
Department of Veterans Affairs who was accompanied by:
Mr. Rondy Waye, Human Resources Policy Advisor for the
Office of Human Resources and Management, U.S.
Department of Veterans Affairs; Ms. Shirley Parker
Blommel, President of Local 390, American Federation of
Government Employees, AFL-CIO; and Mr. Derk A. Wilcox,
Senior Attorney, Mackinac Center for Public Policy.
The following organizations submitted testimony for the
record:
American Federation of Government Employees, AFL-CIO,
and National Nurses United.
Subcommittee Consideration
There was no Subcommittee consideration of H.R. 1461, as
amended.
Committee Consideration
On May 17, 2017, the full Committee met in open markup
session, a quorum being present, and ordered H.R. 1461, as
amended, be reported favorably to the U.S. House of
Representatives by voice vote. During consideration of the
bill, the following amendments were considered:
An amendment in the nature of a substitute offered by
Representative Jim Banks of Indiana, which struck all
after the enacting clause and maintained the underlying
bill but added additional reporting requirements to the
new section 741 of title 38, U.S.C., that would be
created by section two of the bill. The amendment also
made additional changes to section two of the bill by
prohibiting any employee hired under section 7401(1) of
title 38, U.S.C., or who makes $100,000 or more a year
from using official time. Finally, the amendment
extended the probationary period required in section
three of the bill from 18 months to 24 months. The
amendment was adopted by a recorded vote of 13 to 11.
A substitute amendment to the amendment in the nature
of a substitute offered by Representative Tim Walz of
Minnesota, Ranking Member of the Committee on Veterans'
Affairs. The substitute would only retain the reporting
requirements in section two of the amendment in the
nature of a substitute (with some additional
requirements regarding official time that was used for
whistleblower protection, reporting of fraud and abuse,
implementation of new management directives, and
information gathering to support claims of
discrimination for a variety of reasons). Additionally,
the substitute would completely strike out the
limitations on official time and who can use official
time and would remove the flexibility for the employee
to terminate the deduction of union dues at any time as
provided in section two of the underlying amendment in
the nature of a substitute. The substitute was defeated
by a recorded vote of 10-14.
An amendment to the amendment in the nature of a
substitute offered by Representative Tim Walz of
Minnesota, Ranking Member of the Committee on Veterans'
Affairs. The amendment would require that any changes
made by the underlying amendment in the nature of a
substitute would only take effect on the date that is
180 days after the Secretary certifies to Congress that
any employees who are hired under section 7401 of title
38, U.S.C., are appointed to positions that provide
direct patient care to veterans. The amendment was
defeated by a recorded vote of 10-14.
An amendment to the amendment in the nature of a
substitute offered by Representative Beto O'Rourke of
Texas. The amendment would strike the new sections 742
and 743 of title 38, U.S.C., as would be created by
section two of the underlying amendment in the nature
of the substitute. The amendment would also require
that, no later than 180 days after the Secretary
certifies that the VA Time and Attendance System has
been fully implemented, the Comptroller General submit
to Congress a report on the use of official time and
its effectiveness. The amendment was defeated by a
recorded vote of 10-14.
An amendment to the amendment in the nature of a
substitute offered by Representative Mark Takano of
California. The amendment would require that any
changes made by the underlying amendment in the nature
of a substitute would only take effect 180 days after
the date in which the Secretary certifies to Congress
that all 49,386 vacancies at the Department have been
filled. The amendment was defeated by a recorded vote
of 10-14.
An amendment to the amendment in the nature of
substitute offered by Representative Mark Takano of
California. The amendment would strike section 2(b) of
the underlying amendment in the nature of a substitute
which states that the new sections 742 and 743 created
by the amendment in the nature of a substitute
supersede any past, current or future collective
bargaining agreements. The amendment would also require
VA to report to Congress how the new sections 742 and
743 effect the Department's resources and identify any
increase in resources needed to carry out these
sections and would change the effective date for the
sections 742 and 743 so that they would not take effect
until VA certifies to Congress that all vacant human
resources positions have been filled. The amendment was
defeated by a recorded vote of 10-14.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report the legislation and amendments
thereto. At the full Committee markup of the bill on May 17,
2017 seven recorded votes were taken:
An Amendmnent in the Nature of a Substitute to H.R. 1461,
offered by Representative Jim Banks of Indiana, was agreed to
by a recorded vote of 13 yeas and 11 nays. The names of the
Members who voted for and against are as follows:
------------------------------------------------------------------------
Name Yea Nay Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman......... X
Mr. Bilirakis, FL............. X
Mr. Coffman, CO............... X
Dr. Wenstrup, OH.............. X
Ms. Radewagen, AS............. X
Mr. Bost, IL.................. X
Mr. Poliquin, ME.............. X
Dr. Dunn, FL.................. X
Mr. Arrington, TX............. X
Mr. Rutherford, FL............ X
Mr. Higgins, LA............... X
Mr. Bergman, MI............... X
Mr. Banks, IN................. X
Ms. Gonzalez-Colon, PR........ X
Mr. Walz, MN, Ranking Member.. X
Mr. Takano, CA................ X
Ms. Brownley, CA.............. X
Ms. Kuster, NH................ X
Mr. O'Rourke, TX.............. X
Miss Rice, NY................. X
Mr. Correa, CA................ X
Mr. Sablan, Northern Mariana X
Islands......................
Ms. Esty, CT.................. X
Mr. Peters, CA................ X
-----------------------------------------
Total..................... 13 11
------------------------------------------------------------------------
A Substitute to the Amendment in the Nature of a Substitute
to H.R. 1461, offered by Ranking Member Tim Walz of Minnesota,
was not agreed to by a recorded vote of 10 yeas and 14 nays.
The names of the Members who voted for and against are as
follows:
------------------------------------------------------------------------
Name Yea Nay Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman......... X
Mr. Bilirakis, FL............. X
Mr. Coffman, CO............... X
Dr. Wenstrup, OH.............. X
Ms. Radewagen, AS............. X
Mr. Bost, IL.................. X
Mr. Poliquin, ME.............. X
Dr. Dunn, FL.................. X
Mr. Arrington, TX............. X
Mr. Rutherford, FL............ X
Mr. Higgins, LA............... X
Mr. Bergman, MI............... X
Mr. Banks, IN................. X
Ms. Gonzalez-Colon, PR........ X
Mr. Walz, MN, Ranking Member.. X
Mr. Takano, CA................ X
Ms. Brownley, CA.............. X
Ms. Kuster, NH................ X
Mr. O'Rourke, TX.............. X
Miss Rice, NY................. X
Mr. Correa, CA................ X
Mr. Sablan, Northern Mariana X
Islands......................
Ms. Esty, CT.................. X
Mr. Peters, CA................ X
-----------------------------------------
Total..................... 10 14
------------------------------------------------------------------------
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 1461, offered by Ranking Member Tim Walz of Minnesota,
was not agreed to by a recorded vote of 10 yeas and 14 nays.
The names of the Members who voted for and against are as
follows:
------------------------------------------------------------------------
Name Yea Nay Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman......... X
Mr. Bilirakis, FL............. X
Mr. Coffman, CO............... X
Dr. Wenstrup, OH.............. X
Ms. Radewagen, AS............. X
Mr. Bost, IL.................. X
Mr. Poliquin, ME.............. X
Dr. Dunn, FL.................. X
Mr. Arrington, TX............. X
Mr. Rutherford, FL............ X
Mr. Higgins, LA............... X
Mr. Bergman, MI............... X
Mr. Banks, IN................. X
Ms. Gonzalez-Colon, PR........ X
Mr. Walz, MN Ranking Member... X
Mr. Takano, CA................ X
Ms. Brownley, CA.............. X
Ms. Kuster, NH................ X
Mr. O'Rourke, TX.............. X
Miss Rice, NY................. X
Mr. Correa, CA................ X
Mr. Sablan, Northern Mariana X
Islands......................
Ms. Esty, CT.................. X
Mr. Peters, CA................ X
-----------------------------------------
Total..................... 10 14
------------------------------------------------------------------------
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 1461, offered by Representative Beto O'Rourke of Texas,
was not agreed to by a recorded vote of 10 yeas and 14 nays.
The names of the Members who voted for and against are as
follows:
------------------------------------------------------------------------
Name Yea Nay Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman......... X
Mr. Bilirakis, FL............. X
Mr. Coffman, CO............... X
Dr. Wenstrup, OH.............. X
Ms. Radewagen, AS............. X
Mr. Bost, IL.................. X
Mr. Poliquin, ME.............. X
Dr. Dunn, FL.................. X
Mr. Arrington, TX............. X
Mr. Rutherford, FL............ X
Mr. Higgins, LA............... X
Mr. Bergman, MI............... X
Mr. Banks, IN................. X
Ms. Gonzalez-Colon, PR........ X
Mr. Walz, MN Ranking Member... X
Mr. Takano, CA................ X
Ms. Brownley, CA.............. X
Ms. Kuster, NH................ X
Mr. O'Rourke, TX.............. X
Miss Rice, NY................. X
Mr. Correa, CA................ X
Mr. Sablan, Northern Mariana X
Islands......................
Ms. Esty, CT.................. X
Mr. Peters, CA................ X
-----------------------------------------
Total..................... 10 14
------------------------------------------------------------------------
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 1461, offered by Representative Mark Takano of
California, was not agreed to by a recorded vote of 10 yeas and
14 nays. The names of the Members who voted for and against are
as follows:
------------------------------------------------------------------------
Name Yea Nay Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman......... X
Mr. Bilirakis, FL............. X
Mr. Coffman, CO............... X
Dr. Wenstrup, OH.............. X
Ms. Radewagen, AS............. X
Mr. Bost, IL.................. X
Mr. Poliquin, ME.............. X
Dr. Dunn, FL.................. X
Mr. Arrington, TX............. X
Mr. Rutherford, FL............ X
Mr. Higgins, LA............... X
Mr. Bergman, MI............... X
Mr. Banks, IN................. X
Ms. Gonzalez-Colon, PR........ X
Mr. Walz, MN Ranking Member... X
Mr. Takano, CA................ X
Ms. Brownley, CA.............. X
Ms. Kuster, NH................ X
Mr. O'Rourke, TX.............. X
Miss Rice, NY................. X
Mr. Correa, CA................ X
Mr. Sablan, Northern Mariana X
Islands......................
Ms. Esty, CT.................. X
Mr. Peters, CA................ X
-----------------------------------------
Total..................... 10 14
------------------------------------------------------------------------
An Amendment to the Amendment in the Nature of a Substitute
to H.R. 1461, offered by Representative Mark Takano of
California, was not agreed to by a recorded vote of 10 yeas and
14 nays. The names of the Members who voted for and against are
as follows:
------------------------------------------------------------------------
Name Yea Nay Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman......... X
Mr. Bilirakis, FL............. X
Mr. Coffman, CO............... X
Dr. Wenstrup, OH.............. X
Ms. Radewagen, AS............. X
Mr. Bost, IL.................. X
Mr. Poliquin, ME.............. X
Dr. Dunn, FL.................. X
Mr. Arrington, TX............. X
Mr. Rutherford, FL............ X
Mr. Higgins, LA............... X
Mr. Bergman, MI............... X
Mr. Banks, IN................. X
Ms. Gonzalez-Colon, PR........ X
Mr. Walz, MN Ranking Member... X
Mr. Takano, CA................ X
Ms. Brownley, CA.............. X
Ms. Kuster, NH................ X
Mr. O'Rourke, TX.............. X
Miss Rice, NY................. X
Mr. Correa, CA................ X
Mr. Sablan, Northern Mariana X
Islands......................
Ms. Esty, CT.................. X
Mr. Peters, CA................ X
-----------------------------------------
Total..................... 10 14
------------------------------------------------------------------------
H.R. 1461, as amended, was agreed to by a record vote of 13
yeas and 11 nays. The names of the Members who voted for and
against are as follows:
------------------------------------------------------------------------
Name Yea Nay Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman......... X
Mr. Bilirakis, FL............. X
Mr. Coffman, CO............... X
Dr. Wenstrup, OH.............. X
Ms. Radewagen, AS............. X
Mr. Bost, IL.................. X
Mr. Poliquin, ME.............. X
Dr. Dunn, FL.................. X
Mr. Arrington, TX............. X
Mr. Rutherford, FL............ X
Mr. Higgins, LA............... X
Mr. Bergman, MI............... X
Mr. Banks, IN................. X
Ms. Gonzalez-Colon, PR........ X
Mr. Walz, MN Ranking Member... X
Mr. Takano, CA................ X
Ms. Brownley, CA.............. X
Ms. Kuster, NH................ X
Mr. O'Rourke, TX.............. X
Miss Rice, NY................. X
Mr. Correa, CA................ X
Mr. Sablan, Northern Mariana X
Islands......................
Ms. Esty, CT.................. X
Mr. Peters, CA................ X
-----------------------------------------
Total..................... 13 11
------------------------------------------------------------------------
A motion by Representative Jodey Arrington of Texas to
report favorably H.R. 1461, as amended, to the House of
Representatives was agreed to by voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are to provide reasonable changes to VA's
use of official time and labor-management relations and to
extend the probationary period for all new VA employees from 12
months to 24 months.
Earmarks and Tax and Tariff Benefits
H.R. 1461, as amended, does not contain any Congressional
earmarks, limited tax benefits, or limited tariff benefits as
defined in clause 9 of rule XXI of the Rules of the House of
Representatives.
Committee Cost Estimate
The Committee adopts as its own the cost estimate on H.R.
1461, as amended, prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Budget Authority and Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
for H.R. 1461, as amended, provided by the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 19, 2017.
Hon. Phil Roe, M.D.,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1461, the VET
Protection Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dwayne M.
Wright.
Sincerely,
Keith Hall.
Enclosure.
H.R. 1461--VET Protection Act of 2017
H.R. 1461 would limit the use of official time by employees
of the Department of Veterans Affairs (VA) and would require
the department to track the use of such time by its employees.
Official time is paid time off from assigned government duties
to represent a labor union. As part of their, union contracts,
VA employees can use part or all of their working day, up to a
contractually agreed upon number of hours per year, to work in
support of employee unions. Under section 2, no VA employee
could dedicate more than 25 percent of their work time to such
purposes, and some VA employees would be completely prohibited
from using work hours for union related activities. Further, no
VA employee would be allowed to use official time to engage in
political activities or activities related to lobbying.
VA's agreements with employee unions specify the total
number of hours that may be spent on official time rather than
the number of people who are authorized to use official time.
Thus, CBO expects that under the bill, the number of hours
spent on official time would be spread over a larger number of
people, but the total hours would not change significantly.
Section 2 also would require VA to track and provide
detailed annual reports on the use of official time by
department employees. VA is in the process of implementing a
new time and attendance system to track the use of official
time by VA employees that would meet most of the new
requirements. In total, CBO estimates that implementing those
provisions would cost less than $500,000 to prepare new
regulations and reports over the 2018-2022 period; that
spending would be subject to the availability of appropriated
funds.
Section 3 would extend the probationary period for certain
VA employees, including those appointed to the senior executive
service, from one year (or in some cases 18 months) to two
years. CBO estimates that implementing section 3 would have no
budgetary effect.
Enacting H.R. 1461 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply. CBO
estimates that enacting H.R. 1461 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
H.R. 1461 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Dwayne M.
Wright. The estimate was approved by H. Samuel Papenfuss,
Deputy Assistant Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 1461, as amended, prepared by the
Director of the Congressional Budget Office pursuant to section
423 of the Unfunded Mandates Reform Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
1461, as amended.
Constitutional Authority Statement
Pursuant to Article I, section 8 of the United States
Constitution, H.R. 1461, as amended, is authorized by Congress'
power to ``provide for the common Defense and general Welfare
of the United States.''
Applicability to Legislative Branch
The Committee finds that H.R. 1461, as amended, does not
relate to the terms and conditions of employment or access to
public services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Statement on Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 1461, as amended, establishes or reauthorizes a program
of the Federal Government known to be duplicative of another
Federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rulemaking
Pursuant to section 3(i) of H. Res. 5, 115th Cong. (2017),
the Committee estimates that section 3(a) of H.R. 1461, as
amended, would require the VA Secretary to prescribe
regulations to allow a supervisor to determine if an employee
completing their probationary period shall have a final
appointment at the Department.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 cites the short title of H.R. 1461 to be the
``Veterans, Employees, and Taxpayers Protection Act of 2017''
or the ``VET Protection Act of 2017''.
Section 2. Labor Management in Department of Veterans Affairs
Section 2(a) would amend chapter 7 of title 38, U.S.C., to
create a new subchapter III entitled, ``Labor Management'' and
would create the following new sections under the new
subchapter III: section 741 entitled, ``Records on use of
official time''; section 742 entitled, ``Limitations on use of
official time for certain purposes and individuals''; and
section 743 entitled, ``Termination of collection of dues''.
Sec. 741(a) would require the Secretary to track the use of
official time by employees of the Department in a manner that
accounts for such time accurately and to a specific degree
without the use of estimates or ranges of times.
Sec. 741(b) would require the Secretary to submit a report
about employees' use of official time to the House and Senate
Committees on Veterans' Affairs and the Office of Personnel
Management no later than December 31st of each year for the
prior fiscal year. Sec. 741(b) would require the annual report
from the Secretary to include the following information: the
total amount of official time granted to employees; the total
amount of official time expended per employee for term
negotiations, mid-term negotiations, general labor-management
relations, and dispute resolution; the specific types of
activities or purposes for which official time was granted and
the impact that it had on the operations of the Department; the
total number of employees whom official time was granted and,
of that total, the number of this total who were only involved
in activities involving official time; the total annual salary,
job title, and amount of official time afforded to any
employees; a description of the room and space designated by
the Department for the use of official time activities,
including the square footage or any such room or space; and a
list of any employee granted a waiver under the new section
742(d) of title 38, U.S.C.
Sec. 741(c) would define the term ``official time'' as any
period of time which may be granted to an employee under
chapter 71 of title 5, U.S.C. (including a collective
bargaining agreement entered into under such chapter) or
chapter 74 of title 38, U.S.C., to perform representational or
consultative functions; and during which the employee would
otherwise be in a duty status.
Sec. 742 (a) would stipulate that, notwithstanding section
7131 of title 5, U.S.C. or any other provision of law, no
employee of the Department may use official time to carry out
political activities or activities related to lobbying.
Sec. 742 (b) would prohibit any employee of the Department
appointed under section 7401(1) of title 38, U.S.C., or with an
annual rate of basic pay equal to or greater than $100,000,
from using official time for any purpose.
Sec. 742(c) would prohibit any employee of the Department
who is not covered by subsection 742(b) from spending more than
25 percent of their time that they would otherwise spend in a
duty status, on official time.
Sec. 742(d) would allow the Secretary to waive the
requirements of the new subsections 742(b) and 742(c) of title
38, U.S.C., if the Secretary certifies, in writing, that the
waiver is reasonable, necessary, and in the best interest of
veterans. Sec. 742(d) would also provide that the authority
granted in this new subsection, shall not be subject to
collective bargaining under title 38, U.S.C., or chapter 71 of
title 5, U.S.C., and that the exercise of, or failure to
exercise, such authority shall not be an unfair labor practice
under title 38, U.S.C., or title 5, U.S.C.
Sec. 742(e) would define the term ``official time'' as
having the same meaning as given in the new subsection 741(c)
of title 38, U.S.C.
Sec. 743 would provide that notwithstanding section 7115 of
title 5, U.S.C., any exclusive bargaining agreement entered
into pursuant to chapter 51 of title 5, U.S.C., by the
Department shall provide that an employee may terminate a
voluntary allotment for the payment of dues at any time. This
new section would stipulate that any deductions for dues made
pursuant to such allotment shall cease beginning on the first
pay period after the termination is made.
Section 2(b) would provide that the new sections 742 and
743 of title 38, U.S.C., as added by section 2(a), shall apply
with respect to any collective bargaining agreement entered
into before, on, or after the date of enactment of this Act.
Section 2(c) would make a clerical amendment.
Section 3. Required probationary period for new employees of Department
of Veterans Affairs
Section 3(a)(1) would amend chapter 7 of title 38, U.S.C.,
to create a new section 719 entitled, ``Probationary period for
employees''.
Sec. 719(a) would stipulate that, notwithstanding sections
3321 and 3393(d) of title 5, U.S.C., any appointment of a
covered employee shall only become final after the employee has
served a probationary period of two years.
Sec. 719(b) would define a ``covered employee'' for the new
section 719 of title 38, U.S.C., as meaning an individual who
is appointed to a permanent position within the competitive
service at the Department or who is appointed as a career
appointee (as defined in section 3132(a)(4) of title 5, U.S.C.)
within the Senior Executive Service at the Department.
Subsection 719(b) would provide that a ``covered employee''
does not include any individual with a probationary period as
prescribed by section 7403 of title 38, U.S.C.
Sec. 719(c) would provide that not later than 90 days prior
to the expiration of a covered employee's probationary period
under the new subsection 719(a), the supervisor of the employee
shall determine whether the appointment becomes final based on
regulations prescribed by the Secretary.
Sec. 719(d) would, with respect to any individual described
in the new subsection 719(b)(1)(A) of title 38, U.S.C., and to
whom the section applies, apply sections 7501(1) and
7511(a)(1)(A)(ii) of title 5, U.S.C., to such individual and
would substitute ``completed 2 years'' for ``completed 1 year''
in each instance it appears.
Section 3(a)(2) would make clerical and conforming
amendments.
Section 3(b) would provide that the new section 719 of
title 38, U.S.C., shall apply to any covered employee appointed
after the date of enactment of this Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART I--GENERAL PROVISIONS
* * * * * * *
CHAPTER 7--EMPLOYEES
SUBCHAPTER I --GENERAL EMPLOYEE MATTERS
Sec.
701. Placement of employees in military installations.
* * * * * * *
719. Probationary period for employees.
* * * * * * *
SUBCHAPTER III--LABOR MANAGEMENT
741. Records on use of official time.
742. Limitations on use of official time for certain purposes and
individuals.
743. Termination of collection of dues.
* * * * * * *
SUBCHAPTER I--GENERAL EMPLOYEE MATTERS
* * * * * * *
Sec. 719. Probationary period for employees
(a) In General.--Notwithstanding sections 3321 and 3393(d) of
title 5, the appointment of a covered employee shall become
final only after such employee has served a probationary period
of 2 years.
(b) Covered Employee.--In this section, the term ``covered
employee''--
(1) means any individual--
(A) appointed to a permanent position within
the competitive service at the Department; or
(B) appointed as a career appointee (as that
term is defined in section 3132(a)(4) of title
5) within the Senior Executive Service at the
Department; and
(2) does not include any individual with a
probationary period prescribed by section 7403 of this
title.
(c) Permanent Hires.--Not later than 90 days before the
expiration of a covered employee's probationary period under
subsection (a), the supervisor of the employee shall determine
whether the appointment becomes final based on regulations
prescribed for such purpose by the Secretary.
(d) Application.--With respect to any individual described in
subsection (b)(1)(A) and to whom this section applies, sections
7501(1) and 7511(a)(1)(A)(ii) of title 5 shall be applied to
such individual by substituting ``completed 2 years'' for
``completed 1 year'' in each instance it appears.
* * * * * * *
SUBCHAPTER III--LABOR MANAGEMENT
Sec. 741. Records on use of official time
(a) Tracking of Official Time.--The Secretary shall track the
use of official time by employees of the Department of Veterans
Affairs in a manner that accounts for such time accurately and
to a specific degree without the use of estimates or ranges of
time.
(b) Annual Report.--(1) Not later than December 31 of each
year, the Secretary shall submit to the Office of Personnel
Management and the Committees on Veterans' Affairs of the House
of Representatives and the Senate a report on the use of
official time by employees of the Department during the most
recently ended fiscal year.
(2) Each report under paragraph (1) shall include, with
respect to the fiscal year covered by the report, the following
information:
(A) The total amount of official time granted to
employees.
(B) The total amount of official time expended and
the amount of official time expended per employee for
term negotiations, mid-term negotiations, general
labor-management relations, and dispute resolution.
(C) The specific types of activities or purposes for
which official time was granted, and the impact which
the granting of such official time for such activities
or purposes had on the operations of the Department.
(D) The total number of employees to whom official
time was granted, and, of that total, the number who
were not engaged in any activities or purposes except
activities or purposes involving the use of official
time.
(E) The total annual salary, job title, and amount of
official time afforded to any employee.
(F) A description of any room or space designated at
the Department where official time activities will be
conducted, including the square footage of any such
room or space.
(G) A list of any employee granted a waiver under
section 742(d) and justification for each such waiver.
(c) Definition of Official Time.--For purposes of this
section, the term ``official time'' means any period of time--
(1) which may be granted to an employee under chapter
71 of title 5 (including a collective bargaining
agreement entered into under such chapter) or chapter
74 of this title to perform representational or
consultative functions; and
(2) during which the employee would otherwise be in a
duty status.
Sec. 742. Limitations on use of official time for certain purposes and
individuals
(a) Political Activities and Lobbying.--Notwithstanding
section 7131 of title 5 or any other provision of law, any
employee of the Department may not use official time to carry
out political activities or activities relating to lobbying.
(b) Prohibition on Use of Official Time by Certain
Employees.--The following employees of the Department may not
use official time for any purpose:
(1) Any employee appointed under section 7401(1).
(2) Any employee with an annual rate of basic pay
equal to or greater than $100,000.
(3) Any employee who is serving a probationary
period.
(c) Limitation on All Employees.--Any employee of the
Department not covered by subsection (b) may spend no more than
25 percent of the time such employee would otherwise be in a
duty status on official time.
(d) Waiver.--(1) The Secretary may waive the requirements of
subsection (b) or (c) with respect to an employee of the
Department if the Secretary certifies, in writing, that the
waiver is reasonable, necessary, and in the best interests of
veterans.
(2) The authority provided to the Secretary under this
subsection shall not be subject to bargaining under this title
or chapter 71 of title 5, and the exercise of, or failure to
exercise, such authority shall not be an unfair labor practice
under this title or such chapter.
(e) Definition of Official Time.--For purposes of this
section, the term ``official time'' has the meaning given that
term in section 741(c).
Sec. 743. Termination of collection of dues
Notwithstanding section 7115 of title 5, any exclusive
bargaining agreement entered into pursuant to chapter 71 of
such title by the Department shall provide that an employee of
the Department may terminate a voluntary allotment for the
payment of dues at any time. Any deductions for dues made
pursuant to such allotment shall cease beginning on the first
pay period after the termination is made.
* * * * * * *
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TITLE 5, UNITED STATES CODE
* * * * * * *
PART III--EMPLOYEES
* * * * * * *
SUBPART B--EMPLOYMENT AND RETENTION
* * * * * * *
CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT
* * * * * * *
SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT
* * * * * * *
Sec. 3321. Competitive service; probationary period
(a) The President may take such action, including the
issuance of rules, regulations, and directives, as shall
provide as nearly as conditions of good administration warrant
for a period of probation--
(1) before an appointment in the competitive service
becomes final; and
(2) before initial appointment as a supervisor or
manager becomes final.
(b) An individual--
(1) who has been transferred, assigned, or promoted
from a position to a supervisory or managerial
position, and
(2) who does not satisfactorily complete the
probationary period under subsection (a)(2) of this
section,
shall be returned to a position of no lower grade and pay than
the position from which the individual was transferred,
assigned, or promoted. Nothing in this section prohibits an
agency from taking an action against an individual serving a
probationary period under subsection (a)(2) of this section for
cause unrelated to supervisory or managerial performance.
(c) Subsections (a) and (b) of this section shall not apply
with respect to appointments in the Senior Executive Service or
the Federal Bureau of Investigation and Drug Enforcement
Administration Senior Executive [Service, or] Service, any
individual covered by section 1599e of title 10, or any
individual covered by section 719 of title 38.
* * * * * * *
SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT
IN THE SENIOR EXECUTIVE SERVICE
* * * * * * *
Sec. 3393. Career appointments
(a) Each agency shall establish a recruitment program, in
accordance with guidelines which shall be issued by the Office
of Personnel Management, which provides for recruitment of
career appointees from--
(1) all groups of qualified individuals within the
civil service; or
(2) all groups of qualified individuals whether or
not within the civil service.
(b) Each agency shall establish one or more executive
resources boards, as appropriate, the members of which shall be
appointed by the head of the agency from among employees of the
agency or commissioned officers of the uniformed services
serving on active duty in such agency. The boards shall, in
accordance with merit staffing requirements established by the
Office, conduct the merit staffing process for career
appointees, including--
(1) reviewing the executive qualifications of each
candidate for a position to be filled by a career
appointee; and
(2) making written recommendations to the appropriate
appointing authority concerning such candidates.
(c)(1) The Office shall establish one or more qualifications
review boards, as appropriate. It is the function of the boards
to certify the executive qualifications of candidates for
initial appointment as career appointees in accordance with
regulations prescribed by the Office. Of the members of each
board more than one-half shall be appointed from among career
appointees. Appointments to such boards shall be made on a non-
partisan basis, the sole selection criterion being the
professional knowledge of public management and knowledge of
the appropriate occupational fields of the intended appointee.
(2) The Office shall, in consultation with the various
qualification review boards, prescribe criteria for
establishing executive qualifications for appointment of career
appointees. The criteria shall provide for--
(A) consideration of demonstrated executive
experience;
(B) consideration of successful participation in a
career executive development program which is approved
by the Office; and
(C) sufficient flexibility to allow for the
appointment of individuals who have special or unique
qualities which indicate a likelihood of executive
success and who would not otherwise be eligible for
appointment.
(d) An individual's initial appointment as a career appointee
shall become final only after the individual has served a 1-
year probationary period as a career appointee. The preceding
sentence shall not apply to any individual covered by section
1599e of title 10 or section 719 of title 38.
(e) Each career appointee shall meet the executive
qualifications of the position to which appointed, as
determined in writing by the appointing authority.
(f) The title of each career reserved position shall be
published in the Federal Register.
(g) A career appointee may not be removed from the Senior
Executive Service or civil service except in accordance with
the applicable provisions of sections 1215,, 3592, 3595, 7532,
or 7543 of this title.
* * * * * * *
SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS
* * * * * * *
CHAPTER 75--ADVERSE ACTIONS
* * * * * * *
SUBCHAPTER I--SUSPENSION FOR 14 DAYS OR LESS
Sec. 7501. Definitions
For the purpose of this subchapter--
(1) ``employee'' means an individual in the
competitive service who is not serving a probationary
or trial period under an initial appointment or, except
as provided in section 1599e of title 10 or section 719
of title 38, who has completed 1 year of current
continuous employment in the same or similar positions
under other than a temporary appointment limited to 1
year or less; and
(2) ``suspension'' means the placing of an employee,
for disciplinary reasons, in a temporary status without
duties and pay.
* * * * * * *
Sec. 7511. Definitions; application
(a) For the purpose of this subchapter--
(1) ``employee'' means--
(A) an individual in the competitive
service--
(i) who is not serving a probationary
or trial period under an initial
appointment; or
(ii) except as provided in section
1599e of title 10 or section 719 of
title 38, who has completed 1 year of
current continuous service under other
than a temporary appointment limited to
1 year or less;
(B) a preference eligible in the excepted
service who has completed 1 year of current
continuous service in the same or similar
positions--
(i) in an Executive agency; or
(ii) in the United States Postal
Service or Postal Regulatory
Commission; and
(C) an individual in the excepted service
(other than a preference eligible)--
(i) who is not serving a probationary
or trial period under an initial
appointment pending conversion to the
competitive service; or
(ii) who has completed 2 years of
current continuous service in the same
or similar positions in an Executive
agency under other than a temporary
appointment limited to 2 years or less;
(2) ``suspension'' has the same meaning as set forth
in section 7501(2) of this title;
(3) ``grade'' means a level of classification under a
position classification system;
(4) ``pay'' means the rate of basic pay fixed by law
or administrative action for the position held by an
employee; and
(5) ``furlough'' means the placing of an employee in
a temporary status without duties and pay because of
lack of work or funds or other nondisciplinary reasons.
(b) This subchapter does not apply to an employee--
(1) whose appointment is made by and with the advice
and consent of the Senate;
(2) whose position has been determined to be of a
confidential, policy-determining, policy-making or
policy-advocating character by--
(A) the President for a position that the
President has excepted from the competitive
service;
(B) the Office of Personnel Management for a
position that the Office has excepted from the
competitive service; or
(C) the President or the head of an agency
for a position excepted from the competitive
service by statute;
(3) whose appointment is made by the President;
(4) who is receiving an annuity from the Civil
Service Retirement and Disability Fund, or the Foreign
Service Retirement and Disability Fund, based on the
service of such employee;
(6) who is a member of the Foreign Service, as
described in section 103 of the Foreign Service Act of
1980;
(7) whose position is within the Central Intelligence
Agency or the Government Accountability Office;
(8) whose position is within the United States Postal
Service, the Postal Regulatory Commission, the Panama
Canal Commission, the Tennessee Valley Authority, the
Federal Bureau of Investigation, an intelligence
component of the Department of Defense (as defined in
section 1614 of title 10), or an intelligence activity
of a military department covered under subchapter I of
chapter 83 of title 10, unless subsection (a)(1)(B) of
this section or section 1005(a) of title 39 is the
basis for this subchapter's applicability;
(9) who is described in section 5102(c)(11) of this
title; or
(10) who holds a position within the Veterans Health
Administration which has been excluded from the
competitive service by or under a provision of title
38, unless such employee was appointed to such position
under section 7401(3) of such title.
(c) The Office may provide for the application of this
subchapter to any position or group of positions excepted from
the competitive service by regulation of the Office which is
not otherwise covered by this subchapter.
* * * * * * *
SUBCHAPTER V--SENIOR EXECUTIVE SERVICE
Sec. 7541. Definitions
For the purpose of this subchapter--
(1) ``employee'' means a career appointee in the
Senior Executive Service who--
(A) has completed the probationary period
prescribed under section 3393(d) of this [title
or] title, section 1599e of title 10, or
section 719 of title 38; or
(B) was covered by the provisions of
subchapter II of this chapter immediately
before appointment to the Senior Executive
Service; and
(2) ``suspension'' has the meaning set forth in
section 7501(2) of this title.
* * * * * * *
DISSENTING VIEWS
We have serious concerns over H.R. 1461, the Veterans,
Employees, and Taxpayers Protection Act of 2017, particularly
Subsections 742 and 743 of Section 2. Although this bill claims
to address the shortage of Department of Veterans Affairs (VA)
employees who are available to perform direct patient care, we
believe that it is actually a thinly veiled union-busting bill.
Subsections 742 and 743 of Section 2 would strip away much of
the VA employees union's ability to improve the workplace for
all VA employees and the veterans they serve. We believe that
this bill would, at best, do nothing to alleviate long wait
times and, at worst, exacerbate long wait times by getting rid
of vital human resources functions performed by employees on
official time and by making it harder for the VA to attract the
qualified employees that it so desperately needs to fill
current vacancies. In addition, we dissent over the failure of
this Committee to consider this bill under regular order and
the rush to bring this bill to a full Committee markup without
going through the appropriate Subcommittee first.
We strongly agree with H.R. 1461's goal of examining the
VA's workforce to find areas where data-backed improvements can
be made to better serve veterans. The VA's current failure to
sufficiently track how employees are spending official time and
its current lack of understanding of the effects of official
time are problems that need to be addressed. This is why we
offered three amendments during the full-Committee markup that
would have strengthened some of the reporting requirements in
H.R. 1461 and required the VA to examine how much it would cost
to implement H.R. 1461. One amendment would have required a
Government Accountability Office study on the effects of
official time at the VA. Another amendment added requirements
that the VA look at how the use of official time changes from
year to year and that its reports encompass a broader range of
official time duties. The third amendment offered in markup
would have required the VA to study and report on the cost of
replacing the human resource roles of employees on official
time if H.R. 1461 were to be passed and compare that cost with
the current cost of employees on official time. Unfortunately,
the Majority rejected these common-sense attempts at obtaining
data on the use of official time at the VA.
Subsection 742 of Section 2 would place arbitrary
prohibitions on the use of official time by the following
employees:
1. Physicians, dentists, podiatrists, chiropractors,
optometrists, registered nurses, physician assistants,
and expanded-function dental auxiliaries;
2. Employees with an annual rate of basic pay equal
to or greater than $100,000; and
3. Employees serving a probationary period.
It also limits the amount of time any employee at the VA
may spend on official time to an arbitrary, 25 percent of their
time. Given the Majority's acknowledgment that the VA is not
sufficiently tracking official time, we believe it is
irresponsible to propose sweeping personnel changes in the
absence of any data or information about the effects of
official time.
This is particularly troubling as official time is official
agency business. Federal employees who volunteer as union
representatives are already only allowed to use official time
to perform representational activities. Such activities include
setting procedures that protect employees from on-the-job
injuries, enforcing protections from unlawful discrimination,
providing workers with a voice in determining working
conditions, assisting whistleblowers, and representing
employees in grievances and disciplinary actions. These union
representatives perform these activities for the benefit of all
employees in a bargaining unit, not just for those bargaining
unit employees who are members of the union. Additionally,
these employees are already not allowed to use official time to
conduct union-specific business such as organizing new members,
holding internal union meetings, electing union officers, or
engaging in partisan political activities. Therefore, H.R. 1461
would, in effect, simply decrease the valuable human resource
service that these employees provide on official time. This
would have unknown, and potentially disastrous, consequences
for the ability of the VA to serve all veterans, particularly
in the current environment in which it is vitally important for
the VA to protect whistleblowers, strengthen its workforce, and
attract more direct care providers.
By the Majority's own admission, only three physicians
would be impacted by this legislation. This is in comparison to
the 108 Medical Doctors and Doctors of Osteopathy serving in
administrative positions throughout VHA, who do not serve in a
direct patient care. Such a small number of physicians on
official time would do little to address the shortage of
physicians who are available to perform direct patient care and
decrease wait times. If the Majority were truly interested in
addressing wait times, there are far more effective ways to
bring existing providers into patient care roles. This is why,
in the spirit of the Majority's stated intent for this bill, we
supported two amendments that would have been more effective in
decreasing wait times for veterans than H.R. 1461. One
amendment would have required the VA to move all providers who
are capable of providing direct patient care into such roles
instead of just focusing on the miniscule number of providers
on official time. The other amendment would have required the
VA to first fill each of its existing 49,386 vacancies, which
include over 45,000 direct provider vacancies. Unfortunately,
the Majority rejected each of these proposals as well and
continued to only focus on the miniscule number of physicians
on official time.
Subsection 743 of Section 2 would strip the VA employees
union of the ability to have some certainty of how much support
it would have from VA employees. This would in turn strip the
union of any ability to plan and conduct the activities it
needs to protect VA employees and protect the VA workplace.
Given the valuable services that the union provides at the VA
through working with employees and managers to resolve
disputes, addressing issues of discrimination and retaliation,
and effecting improvements in the workplace that benefit all
employees, this would have devastating consequences for the
VA's ability to perform its mission to serve all veterans.
Furthermore, this bill was not considered through regular
order, and rushed to a full Committee markup. By doing so, the
Majority missed a key opportunity to develop bipartisan
legislation that could have brought more clarity on the impacts
of official time at the VA. We find it unfortunate that the
Majority rejected common-sense, pragmatic proposals to bring
about such clarity and chose, in this instance, to attack
unions rather than the systemic problems that actually
contribute to the shortage of direct care providers. We remain
committed to working together to ensure veterans come first.
Timothy J. Walz.
Mark Takano.
Julia Brownley.
Scott H. Peters.
J. Luis Correa.
Gregorio Kilili Camacho Sablan.
Kathleen M. Rice.
Ann M. Kuster.
Elizabeth H. Esty.
[all]