[Senate Report 111-287]
[From the U.S. Government Publishing Office]
Calendar No. 558
111th Congress Report
SENATE
2d Session 111-287
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A BILL TO AMEND TITLE 38, UNITED STATES CODE, TO REPEAL THE PROHIBITION
ON COLLECTIVE BARGAINING WITH RESPECT TO MATTERS AND QUESTIONS
REGARDING COMPENSATION OF EMPLOYEES OF THE DEPARTMENT OF VETERANS
AFFAIRS OTHER THAN RATES OF BASIC PAY, AND FOR OTHER PURPOSES
_______
September 2, 2010.--Ordered to be printed
Filed, under authority of the order of the Senate of August 5, 2010
_______
Mr. Akaka, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S. 3486]
The Committee on Veterans' Affairs (hereinafter, ``the
Committee''), to which was referred the bill (S. 3486), a bill
to amend title 38, United States Code, to repeal the
prohibition on collective bargaining with respect to matters
and questions regarding compensation of employees of the
Department of Veterans Affairs other than rates of basic pay,
and for other purposes, having considered the same, reports
favorably thereon, and recommends that the bill do pass.
Introduction
On June 15, 2010, Senator Brown of Ohio introduced S. 3486.
S. 3486 would repeal the prohibition on collective bargaining
for matters and questions regarding compensation of employees
of the Department of Veterans Affairs, other than rates of
basic pay.
In a Committee markup on August 5, 2010, Senator Brown of
Ohio introduced an amendment, which contained the text of
S. 3486, to the Committee Print of S. 3325.
Committee Meeting
The Committee met in open session on August 5, 2010, to
consider, among other legislation, an amendment to the
Committee Print of S. 3325, introduced by Mr. Brown of Ohio.
The Committee agreed by voice vote to separate this amendment
and to report it individually if agreed to. The Committee then
agreed to the amendment by a call of the roll.
Summary of S. 3486 as Reported
S. 3486, as reported (hereinafter, ``the Committee bill''),
would repeal the prohibition on collective bargaining with
respect to matters and questions regarding compensation of
employees of the Department of Veterans Affairs (hereinafter,
``the Department'' or ``VA'') other than rates of basic pay.
Background and Discussion
Sec. 1. Repeal of prohibition on collective bargaining with respect to
compensation of Department of Veterans Affairs Employees other
than rates of basic pay.
The Committee bill would repeal the prohibition on
collective bargaining for Department employees hired under the
authority of title 38, United States Code (hereinafter, ``Title
38 Employees''), with respect to matters and questions
regarding compensation of such employees other than matters and
questions regarding rates of basic pay.
Background. Collective bargaining rights refer to the
rights of employees to grieve, arbitrate, and negotiate over
conditions of their employment. The Veterans Health
Administration (hereinafter, ``VHA'') employees are hired under
different statutory authority, depending upon their occupation,
and, as such, are subject to different personnel laws. Certain
personnel, such as physicians, dentists, registered nurses,
optometrists, physician assistants, and podiatrists, are hired
under the authority of title 38, United States Code, and are
subject to the provisions of chapter 74 of title 38, United
States Code, for placement, pay schedules, leave, hours of
duty, discipline, adverse actions and appeals, and performance
management. Other employees, such as practical nurses,
occupational therapists, pharmacists, physical therapists, and
respiratory therapists are covered by rules in title 38 for
placement and pay administration, but are covered by rules in
title 5, United States Code, for pay schedules, disciplinary
and adverse action procedures, and performance management and
leave systems (hereinafter, ``Title 38 Hybrid Employees'').
Title 5, United States Code, generally encompasses
employment laws for all Federal employees, except some VA
personnel and national security personnel, and provides more
robust collective bargaining rights for the employees hired
under that authority. In 1991, in recognition that both Title
38 Employees and Title 38 Hybrid Employees with different
bargaining rights may work alongside one another in VA
facilities, Congress passed Public Law 102-40, to provide
collective bargaining rights to all Department medical
personnel hired under the authority of title 38, United States
Code. Under section 7422 of title 38, United States Code, Title
38 Employees may negotiate, file grievances, and arbitrate
disputes over working conditions with three exceptions: matters
concerning professional conduct or competence, peer review, or
compensation.
The Committee received testimony from the American
Federation of Government Employees (hereinafter, ``AFGE'') on
April 22, 2009, regarding S. 362, a related bill addressing
collective bargaining rights, which was introduced by Senator
Rockefeller on January 30, 2009. AFGE contended that the
Department's interpretation of the exclusions to collective
bargaining have been overly broad. Ammie Hilsabeck, a
registered nurse at the Oscar G. Johnson VA Medical Center in
Iron Mountain, Michigan, representing AFGE, stated that the
Department applies the exception to bargaining over
compensation, ``not just to negotiation over the setting of pay
scales (which is clearly prohibited already by Title 5 for all
federal employees), but also entitlements to `additional pay'
such as overtime, weekend pay, and retention pay that Congress
has specifically enacted to ensure a fair and desirable
workplace.''
Also, in testimony submitted at the same hearing, the
Disabled American Veterans stated that it endorsed the intent
of S. 362 and believed it to be an appropriate remedy that
would give the Department and labor to a more balanced
bargaining relationship on issues of importance to VA's
professional workforce.
Committee Bill. The Committee bill would amend subsections
(b) and (d) of section 7422 of title 38, United States Code, so
as to clarify the scope of the compensation exclusion to
bargaining, by substituting the phrase ``rates of basic pay''
for ``compensation.''
It is the Committee's intent that the term ``rates of basic
pay'' will clarify that the right to set pay scales is reserved
for Congress, and that Title 38 Employees may bargain over
other compensation issues, such as calculation of overtime pay,
access to wage survey data, and implementation of performance
pay measures.
Committee Bill Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the Committee, based on
information supplied by the Congressional Budget Office
(hereinafter, ``CBO''), could increase personnel costs but
there is not enough information to estimate the likelihood or
potential magnitude of the potential increases. CBO further
estimates that enacting the bill would not increase direct
spending or affect revenues. Enactment of the Committee bill
would not affect receipts and would not affect the budget of
state, local or tribal governments.
The cost estimate provided by CBO, setting forth a detailed
breakdown of costs, follows:
Congressional Budget Office,
Washington, DC, August 30, 2010.
Hon. Daniel K. Akaka,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3486, a bill to
amend title 38, United States Code, to repeal the prohibition
on collective bargaining with respect to matters and questions
regarding compensation of employees of the Department of
Veterans Affairs other than rates of basic pay, and for other
purposes.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Sunita
D'Monte.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
S. 3486--A bill to amend title 38, United States Code, to repeal the
prohibition on collective bargaining with respect to matters
and questions regarding compensation of employees of the
Department of Veterans Affairs other than rates of basic pay,
and for other purposes
S. 3486 would expand the collective bargaining authority of
certain employees of the Veterans Health Administration (VHA).
Under current law, the Secretary of Veterans Affairs has the
discretion to appoint certain personnel to VHA--such as
physicians, nurses, dentists, and physician assistants--and to
set their hours and conditions of employment. Such employees
are prohibited from collectively bargaining over matters
pertaining to professional conduct or competence, peer reviews,
or compensation. S. 3486 would relax those restrictions by
allowing collective bargaining over compensation issues
excluding rates of basic pay.
Based on information from VHA, CBO expects that under the
bill 78,500 of the administration's roughly 260,000 employees
would be able to collectively bargain over forms of
compensation such as special pays (which are based on
performance, cost of living, or market conditions), awards and
bonuses, and overtime or special scheduling arrangements.
Compensation for VHA employees is funded through annual
appropriations; such compensation is estimated to total almost
$24 billion in 2010. Under the bill, collective bargaining
could increase VHA's personnel costs in several ways; for
example, employees could negotiate bonuses or performance
awards, higher rates for overtime pay, and higher special pay
for employees in highly demanded specialties. However, CBO has
no basis upon which to estimate the likelihood or potential
magnitude of those effects.
Enacting S. 3486 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
S. 3486 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 Sunita D'Monte.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee on Veterans'
Affairs has made an evaluation of the regulatory impact that
would be incurred in carrying out the Committee bill. The
Committee finds that the Committee bill would not entail any
regulation of individuals or businesses or result in any impact
on the personal privacy of any individuals and that the
paperwork resulting from enactment would be minimal.
Tabulation of Votes Cast in Committee
In compliance with paragraph 7 of rule XXVI of the Standing
Rules of the Senate, the following is a tabulation of votes
cast in person or by proxy by members of the Committee on
Veterans' Affairs at its August 5, 2010, meeting. On that date
the Committee agreed by voice vote to report separately the
amendment introduced by Mr. Brown of Ohio, if agreed to. The
following senators were present: Mr. Rockefeller, Ms. Murray,
Mr. Brown of Ohio, Mr. Webb, Mr. Tester, Mr. Begich, Mr.
Burris, Mr. Burr, Mr. Isakson, Mr. Brown of Massachusetts, and
Chairman Akaka.
The Committee then agreed to the measure and ordered
S. 3486, to be reported favorably to the Senate by a call of
the roll.
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Yeas Senator Nays
----------------------------------------------------------------------------------------------------------------
X Mr. Rockefeller
X Mrs. Murray
X (by proxy) Mr. Sanders
X Mr. Brown of Ohio
X (by proxy) Mr. Webb
X Mr. Tester
X Mr. Begich
X Mr. Burris
X (by proxy) Mr. Specter
Mr. Burr X
Mr. Isakson X
Mr. Wicker X (by proxy)
Mr. Johanns X (by proxy)
Mr. Brown of Massachusetts X
Mr. Graham X (by proxy)
X Mr. Chairman
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10 TALLY 6
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Agency Report
On July 30, 2010, the Committee received a letter from
Secretary Shinseki which was supplemental to the Department's
views on pending legislation provided at the Committee hearing
on May 19, 2010, at which Thomas J. Pamperin, Associate Deputy
Under Secretary for Policy and Program Management, Veterans
Benefits Administration, and Robert Jesse, MD, Acting Principal
Deputy Under Secretary for Health, Veterans Health
Administration, appeared before the Committee and submitted
written testimony on pending legislation. Excerpts of the
additional views are reprinted below:
The Secretary of Veterans Affairs,
Washington, DC, July 30, 2010.
Hon. Daniel K. Akaka,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am pleased to provide the Committee
with the views of the Department of Veterans Affairs (VA) on
twelve of the thirteen bills listed in your May 21, 2010,
letter. In addition, we are providing cost estimates for three
bills about which we testified at the Committee's May 19, 2010,
hearing but for which we were unable to develop cost estimates
in time for that hearing. We will provide views and costs on
S. 3486 to the Committee in a separate letter.
* * * * * * *
S. 3486
S. 3486 would repeal the prohibition on collective
bargaining with respect to compensation of VA employees other
than rates of basic pay. We will provide the Committee with
formal written comments on this bill in a separate letter.
The Office of Management and Budget has advised that there
is no objection to the submission of this report from the
standpoint of the Administration's program.
Sincerely,
Eric K. Shinseki.
* * * * * * *
MINORITY VIEWS OF HON. RICHARD BURR,
RANKING MEMBER
I am concerned that my colleagues in the majority have
approved this legislation to expand collective bargaining
rights without a full understanding of its potential impact on
VA's health care system. The Committee did not have the views
of the administration or other interested groups, did not have
the ability to question witnesses about the legislation's
effect and, at the August 5 markup, was not presented with any
compelling evidence as to why the Committee's consideration of
the bill needed to be rushed.
Employees governed under the title 38, United States Code,
personnel system can collectively bargain over all matters
except professional conduct or competence; matters affecting
peer review; or the establishment, determination, or adjustment
of employee compensation. The legislation approved by the
majority would make all compensation matters (except basic
rates of pay) open to collective bargaining.
Here are my concerns:
The Committee received testimony in each of the last two
Congresses regarding legislation to amend the law governing VA
employees' collective bargaining rights, a law that has not
been amended since its inception 20 years ago. Both the Bush
and Obama administrations testified strongly against the
legislation. For example, here is an excerpt from VA testimony
at the April 22, 2009, Committee hearing to review legislation
to modify the collective bargaining law:
``While we appreciate the many positive contributions
collective bargaining and labor-management partnership
make to VA's mission, VA strongly opposes S. 362,
which, if enacted, would imperil VA's ability to
furnish timely and quality care for veterans.''
Although what we considered at the August 5, 2010, mark up
was narrower in scope than the legislation referred to in the
above testimony, as a Congress, we have an obligation to
understand the consequences, both intended and unintended, of
what we considered. Certainly any matter affecting union rights
to bargain which may ``imperil VA's ability to furnish timely
and quality care for veterans'' should give us all pause.
I was able to get a brief list of the items that, under the
legislation adopted by the majority, would be open to
collective bargaining. It includes market pay; performance pay;
premium pay; on-call pay; pay connected with the Baylor Plan
schedule; special salary rates; recruitment and retention
bonuses; and nurse locality pay. Are we prepared to say that we
understand how extending the ability to bargain over these
matters will affect operation of VA's health care system? What
would be the effect of protracted negotiations on these matters
if VA and the unions could not reach agreements? What would be
the effect of a third party arbitrator deciding matters
impacting operations of a health care system? What would the
impact be on hospital budgets and management flexibility to use
resources on critical items?
Again, without answers to all of these questions--each
raised in the last few years by both the Bush and Obama
administrations--we are simply flying blind. I believe that it
is important to see the views of the Administration and others
before this bill is considered by the full Senate. I would have
hoped for a more deliberative Committee process and not one
that, in my opinion, threw caution to the wind.
Changes in Existing Law
In compliance with paragraph 12 of Rule XXVI of the
Standing Rules of the Senate, 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).
TITLE 38. VETERANS' BENEFITS
* * * * * * *
PART V. BOARDS, ADMINISTRATIONS, AND SERVICES
* * * * * * *
CHAPTER 74. VETERANS HEALTH ADMINISTRATION--PERSONNEL
* * * * * * *
Subchapter II. Collective Bargaining and Personnel Administration
* * * * * * *
SEC. 7422. COLLECTIVE BARGAINING
(a) * * *
(b) Such collective bargaining (and any grievance
procedures provided under a collective bargaining agreement) in
the case of employees described in section 7421(b) of this
title may not cover, or have any applicability to, any matter
or question concerning or arising out of (1) professional
conduct or competence, (2) peer review, or (3) the
establishment, determination, or adjustment of employee
[compensation] rates of basic pay under this title.
(c) * * *
(d) An issue of whether a matter or question concerns or
arises out of (1) professional conduct or competence, (2) peer
review, or (3) the establishment, determination, or adjustment
of employee [compensation] rates of basic pay under this title
shall be decided by the Secretary and is not itself subject to
collective bargaining and may not be reviewed by any other
agency.
(e) * * *
* * * * * * *