[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
THE USE OF OFFICIAL TIME FOR UNION ACTIVITIES AT THE DEPARTMENT OF
VETERANS AFFAIRS
=======================================================================
JOINT HEARING
of the
SUBCOMMITTEE ON ECONOMIC OPPORTUNITY (EO)
of the
COMMITTEE ON VETERANS' AFFAIRS
and the
COMMITTEE ON OVERSIGHT & GOVERNMENT REFORM
SUBCOMMITTEE ON GOVERNMENT OPERATIONS
before the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
THURSDAY, FEBRUARY 16, 2017
__________
Serial No. 115-3
__________
Printed for the use of the Committee on Veterans' Affairs
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.fdsys.gov
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COMMITTEE ON VETERANS' AFFAIRS
DAVID P. ROE, Tennessee, Chairman
GUS M. BILIRAKIS, Florida, Vice- TIM WALZ, Minnesota, Ranking
Chairman Member
MIKE COFFMAN, Colorado MARK TAKANO, California
BRAD R. WENSTRUP, Ohio JULIA BROWNLEY, California
AMATA COLEMAN RADEWAGEN, American ANN M. KUSTER, New Hampshire
Samoa BETO O'ROURKE, Texas
MIKE BOST, Illinois KATHLEEN RICE, New York
BRUCE POLIQUIN, Maine J. LUIS CORREA, California
NEAL DUNN, Florida KILILI SABLAN, Northern Mariana
JODEY ARRINGTON, Texas Islands
JOHN RUTHERFORD, Florida ELIZABETH ESTY, Connecticut
CLAY HIGGINS, Louisiana SCOTT PETERS, California
JACK BERGMAN, Michigan
JIM BANKS, Indiana
JENNIFFER GONZALEZ-COLON, Puerto
Rico
Jon Towers, Staff Director
Ray Kelley, Democratic Staff Director
SUBCOMMITTEE ON ECONOMIC OPPORTUNITY
JODEY ARRINGTON, Texas, Chairman
GUS BILIRAKIS, Florida BETO O'ROURKE, Texas, Ranking
BRAD WENSTRUP, Ohio Member
JOHN RUTHERFORD, Florida MARK TAKANO, California
JIM BANKS, Indiana LUIS CORREA, California
KATHLEEN RICE, New York
SUBCOMMITTEE ON GOVERNMENT OPERATIONS
COMMITTEE ON OVERSIGHT & GOVERNMENT REFORM
MARK MEADOWS, North Carolina, Chairman
JODY HICE, Georgia GERALD E. CONNOLLY, Virginia,
JIM JORDAN, Ohio Ranking Member
MARK SANFORD, South Carolina CAROLYN MALONEY, New York
THOMAS MASSIE, Kentucky ELEANOR HOLMES-NORTON, District of
RON DESANTIS, Florida Columbia
DENNIS ROSS, Florida WILLIAM LACY CLAY, Missouri
ROD BLUM, Iowa BRENDA LAWRENCE, Mississippi
BONNIE WATSON COLEMAN, New Jersey
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
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of converting between various electronic formats may introduce
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C O N T E N T S
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Thursday, February 16, 2017
Page
The Use Of Official Time For Union Activities At The Department
Of Veterans Affairs............................................ 1
OPENING STATEMENTS
Honorable Mark Meadows, Chairman,Committee on Oversight and
Government Reform, the Subcommittee on Government Operations,.. 1
Honorable Gerald E. Connolly, Ranking Member of the Subcommittee
on Government Operations....................................... 2
Honorable Jodey Arrington, Chairman Subcommittee on economic
Opportunity, Committee on Veterans' Affairs.................... 4
Honorable Beto O'Rourke, Ranking Member of the Subcommittee on
Economic Opportunity, Committee on Veterans' Affairs........... 6
Honorable Tim Walz, Ranking Member, Full Committee on Veterans'
Affairs........................................................ 7
WITNESSES
Ms. Cindy Brown Barnes, Director, Education, Workforce and Income
Security , U.S. Government Accountability Office............... 8
Prepared Statement........................................... 41
Ms. Kimberly Perkins McLeod, Acting Executive Director, Labor
Management Relations, U.S. Department of Veterans Affairs...... 9
Prepared Statement........................................... 46
Mr. J. David Cox, Sr., National President, American Federation of
Government Employees, AFL-CIO.................................. 11
Prepared Statement........................................... 47
Mr. Trey Kovacs, Policy Analyst, Competitive Enterprise Institute 12
Prepared Statement........................................... 52
STATEMENT FOR THE RECORD
Cindy Brown Barnes' response to a question posed by
Representative O'Rourke........................................ 57
THE USE OF OFFICIAL TIME FOR UNION ACTIVITIES AT THE DEPARTMENT OF
VETERANS AFFAIRS
----------
Thursday, February 16, 2017
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Oversight
and Investigations,
Washington, D.C.
The Subcommittees met, pursuant to notice, at 12:37 p.m.,
in Room 2154, Rayburn House Office Building, Hon. Mark Meadows
[Chairman of the Subcommittee on Government Operations]
presiding.
Present: Representatives Meadows, Arrington, Hice,
Bilirakis, Jordan, Wenstrup, Rutherford, Massie, Banks,
DeSantis, Ross, Blum, Roe, Chaffetz, Connolly, O'Rourke,
Takano, Correa, Clay, Rice, Watson Coleman, and Walz.
OPENING STATEMENT OF MEADOWS
Mr. Meadows. The Committee on Oversight and Government
Reform, the Subcommittee on Government Operations, and the
Committee on Veterans' Affairs, Subcommittee on Economic
Opportunity will come to order, and without objection, the
chair is authorized to declare a recess at any time.
Good afternoon, and today's hearing will allow us the
opportunity to learn more about the official time used at the
Department of Veterans Affairs. And for those of you who may
not know what official time is, what a Federal employee
actually does to use official time and representational work on
behalf of the labor unions during work hours, even if that work
is unrelated to their regular assigned duties.
The official time statute broadly lays out those union
activities that are reasonable, necessary, and in the public
interest that are permissible. And the last time OPM disclosed
data on official time use in 2012, it revealed that VA
employees comprised almost one-third of the 3.4 million hours
of official time performed by Federal employees' government
wide.
Specifically, VA employees performed 1,086,257 hours of
official time, and that's the most of any agency. OPM also
found that official time is on the rise, increasing by a half
million hours between 2008 and 2012. Between fiscal year 2014
and fiscal year 2015, 1,942 VA employees were engaged in some
degree of official time. And in fact, in fiscal year 2014, 345
VA employees had 100 percent of their time was official time,
so they were essentially full-time on official time. That means
that 345 VA employees spent all of their time engaged on union
activities.
In fiscal year 2015, that was 343 VA employees that had 100
percent of their time engaged in official time activities. Data
provided by the VA to the Committee reveals that three of the
top five positions with full or 100 percent official time were
nurses. The data we have is only a small window into how much
time Federal employees spend on official time activities, but
because agencies are not required by law to annually report the
amount of time their employees perform, it makes it very
difficult, making the recent audit of the VA done by GAO, it
found that it could not accurately track the amount of time
employees spend on official time at the VA agency wide.
With the VA taking up one-third of the official time for
the entire Federal Government, it's important that it employs
accurate methods to calculate and records to show how much time
we are spending on those union activities. Now, I look forward
to hearing from both the GAO and the VA to see what steps can
be taken to make sure that not only we accurately reflect that
but what steps have been taken and can be taken to accurately
track official time.
I want to be clear about one thing. This is not about
whether Federal employees should or should not participate in
official time. We recognize, I recognize the importance of that
particular activity. Today's hearing is really about what is
reasonable and what is in the best interest of the taxpayers
who foot the bill for official time.
With the VA backlog in the tens of thousands, it's
reasonable for medical professionals'--is it reasonable for
medical professionals to spend 100 percent of their days on VA
union activities?
And so with that, we continue to hear VA understaffed
situations in the midst of an access crisis. Is it responsible
for doctors, nurses, and other employees providing direct
patient care to be 100 percent official time or maybe even 75
or 50 percent?
Our Nation's veterans deserve to have an accountable VA.
Understanding how much time VA employees are spending on union
activities is an important part towards granting the veterans
the access to proper care they deserve, need, and have earned.
And so with that, I now recognize the Ranking Member of the
Subcommittee on Government Operations, my good friend from
Virginia, Mr. Connolly.
OPENING STATEMENT OF CONNOLLY
Mr. Connolly. Thank you so much, Mr. Meadows, and thanks
for holding this hearing on the use of official time and the
ability of unions to protect the whistleblowers who help
prevent waste, fraud, and abuse in the Federal Government.
Our Committees have a longstanding commitment to
whistleblowers, but sometimes I think some of my colleagues
forget that whistleblowers are Federal employees. Attacks on
Federal employees can do harm to whistleblowers. That may suit
our new President who has also muzzled whistleblowers
temporarily at some agencies, but I feel it is detrimental to
the positive influence whistleblowers have on Federal
operations.
For this reason, I join the Chairman of this Subcommittee
in sending a letter to all agencies to determine the effects of
gag orders on whistleblower protections, and I thank the
Chairman for joining with me in that effort.
Today we received a letter from a whistleblower, a Federal
employee at the VA, the very agency the Chairman was just
talking about. Her name is Dr. Michelle Washington. In 2011,
Dr. Washington was a psychologist and coordinator of post-
traumatic stress disorder services for the Veterans' Affairs
facility in Wilmington, Delaware. She observed that veterans
were facing severe problems getting access to mental health
services. She subsequently testified before the Senate
Committee on Veterans' Affairs to voice her professional
concerns with a system not fulfilling its mission.
Did she get a bonus or a promotion for a job well done? Far
from it. Her supervisors at the VA retaliated. Her excellent
performance evaluations suddenly became downgraded. She was
relieved of responsibilities helping veterans and was uninvited
to planning meetings, and her coworkers were pressured not to
associate with her. This is a video of Dr. Michelle.
[Video shown.]
Mr. Connolly. Thank you. The retaliatory actions taken
against Dr. Washington were illegal. Last week, the Oversight
Committee strengthened these protections when it unanimously
passed a bill I co-introduced with Representative Duffy, H.R.
657, the Follow the Rules Act, also cosponsored by yourself,
Mr. Chairman. It's not enough to pass these laws, however, and
pay lip service at occasional hearings.
These protections have to be enforced. In the workplace,
Federal employee unions have enforced the whistleblower laws
Congress passes, and they do it on official time.
Current law allows unions to stand up for Federal employees
facing retaliation, such as Dr. Washington faced in the
workplace. Dr. Washington's letter states that official time
is, quote, ``absolutely necessary to help protect veterans,
workers, and whistleblowers,'' and I would ask unanimous
consent to enter her letter addressed to you, myself, Mr.
Chaffetz, Mr. Cummings into the record.
Mr. Meadows. Without objection.
Mr. Connolly. I thank my friend.
Dr. Washington explained that AFGE representatives were
only able to help meet at designated periods of time when they
were allowed to use official time. My union representative used
official time to research OPM regulations as well as write up
and file the grievances and have 10 meetings with me in
attempts to address the retaliation, and remember, the broader
goal was in order to make sure veterans were served.
Some of my colleagues want to eliminate the ability of
Federal employees to perform union representational duties on
official time. Dr. Washington's experience tells us what the
consequences of that policy could be. She wrote, quote, ``If
official time had not been available to the AFGE
representatives, we may not have been able to defend my case.
It would have set a precedent that management can retaliate
without consequence.''
I'm certain we don't intend to disadvantage whistleblowers,
I know we're committed to them, but the effect of their
concerted attacks on unions and civil service protections
sometimes would be to strip whistleblowers of their advocates
in the workplace, their union.
And I hope Mr. Chairman will proceed with great caution on
this subject, and I thank him for holding the hearing. I yield
back.
Mr. Meadows. I thank the gentleman. The gentleman from
Virginia knows very well that whistleblower protection and the
rights of Federal employees is something that may not normally
be a bipartisan issue but with this Chairman certainly is, and
I will continue to remain vigilant as we look to protect that.
Mr. Connolly. And for the record, I know that, and I
reaffirm that. You're absolutely right.
Mr. Meadows. I thank the gentleman. The chair recognizes
the Chairman on the Subcommittee for Economic Opportunity of
the Committee on Veterans' Affairs, Mr. Arrington for his
opening statement.
OPENING STATEMENT OF ARRINGTON
Mr. Arrington. Thank you, Mr. Chairman. I'd like to also
reiterate that I support protections for whistleblowers, and I
want to note that last year's Congress enacted one of the
strongest whistleblower protection initiatives within the VA in
our Nation's history, so I think we stand shoulder to shoulder
on that.
Thank you, Mr. Chairman, thanks to everybody for being
here. Thank you, panelists.
This is my first official hearing as Chairman of the VA
Committee Subcommittee on Economic Opportunity, and let me say
I'm very excited to work with my Ranking Member and fellow
Texan, Congressman O'Rourke.
And I'm also pleased, obviously, to partner with you, Mr.
Chairman, and the other Members on your Committee.
I believe we can all agree that the mission of the
Department of Veterans Affairs is to care for those who have
borne the battle. This is more than a government agency
mission. This is a sacred honor. This is a sacred
responsibility for every VA employee and for every American.
The men and women who have raised their right hand to serve and
who have been willing to make the ultimate sacrifice, I think
you will agree, deserve nothing but the best service and care
worthy of their commitment to our country.
Unfortunately, time and time again situations have come to
light where the care of our veterans, the care that they were
receiving didn't measure up to this standard of excellence.
Now here we are, almost 3 years later after Phoenix, an
agency wide wait list scandal where several veterans waiting
for months, some who died before they could get an appointment
with a doctor, and yet the problem still persists. Veterans are
still waiting too long to receive an appointment.
Veterans and their families are still waiting too long for
their disability compensation claims to be adjudicated and
their appeals to be decided upon, 450,000 plus appeals in
backlog. In fact, VA's own statistics indicate that there are
over 45,000 vacancies within the Veterans' Health
Administration, and the claims backlog for disability claims
has recently increased 33 percent. These statistics are
absolutely unacceptable, and they are the reality, and in my
opinion, the shameful reality of the current state of affairs
at the VA.
I want to be clear, the purpose of this hearing is not to
completely discredit any use of the official time within VA or
even across the Federal Government. After all, it is allowed
under law. We must, however, ask ourselves this question: Are
we going to fulfill the mission of the VA and provide excellent
service to our veterans, or are we going to perpetuate what I
believe appears to be a broken bureaucracy and a culture of
unaccountability?
I'm grateful to the Government Accountability Office for
taking this large task of looking at the use of official time
at the VA and how the Department is tracking its use, as well
as space at facilities used for union activities.
I'm very troubled, Mr. Chairman, by their findings, that
the VA is not accurately or sufficiently tracking how much time
employees are using official time and that the data that we do
have from the VA is unreliable at best. This concerns me on a
number of levels.
Are people taking advantage of the system? I would conclude
that most likely they are, because whether intentional or not,
without an accountability system, there is no consistent means
to track official time even if you wanted to, and as the old
saying goes, you can't manage what you can't measure.
This issue brings me to something that concerns me even
more. Not only are some individuals spending 100 percent of
their working days doing union activities while receiving their
taxpayer-funded salaries, but some individuals are receiving
their taxpayer-funded salaries and are not even being
appropriately tracked for what they are doing with the time
that they are not directly serving our veterans or just doing
the jobs that they were hired to do.
As someone who has overseen multitudes of different staffs
throughout my career, I can't fathom an instance where I would
be paying someone a taxpayer-funded salary to do a job that I
can't even account for at the end of the day. And what's even
more troubling is that in the recent GAO report, this is not
the first discovery. This is not the first time this has been
brought to light. There have been other studies by GAO, 1979,
1981, 1996, recommending that time spent on union activities
needs to be better tracked.
Here we are again, 2017, still having the same conversation
and GAO is still making the same recommendations. This is
insane. I understand both sides of the aisle aren't going to
always agree on to what extent unions should be involved or the
power that they should hold in the Federal Government, but I
know, I know that we all agree that the Department of Veterans
Affairs should place the needs of our veterans above all else.
And I'm very concerned that in this current environment, this
isn't the case.
We have doctors, nurses, medical assistants, therapists,
pharmacists, claims raters, senior raters, and so on and so on
serving on official time, many 100 percent of their time, some
of them making over six figures. This means we have hundreds,
if not thousands of VA employees spending part and sometimes
all their working days serving the union instead of directly
serving our veterans. Again, doing the job they were hired to
do.
I understand that union representation--that union
representatives are supposed to serve the employees of the VA
facility, whether it is through grievances or management
relations, which in turn, one could argue, serves the overall
facility's function, but you would be hard pressed to convince
me or any reasonable person that a physician making over
$200,000 a year, paid for by taxpayers, is best utilized
sitting in an office dealing with union grievances for 100
percent of their working day rather than standing by the
bedside of a veteran caring for that veteran.
The standard for official time is to use it on, quote,
``representational work,'' work that is, quote, ``reasonable,
necessary, and in the public's interest.'' I don't believe the
average American would see this as reasonable. I don't believe
the average American would see this as necessary, and I don't
believe they would see it as in their best interest. In fact, I
believe the average American would be outraged.
I came to Congress, as I think most of my colleagues did,
to make a difference, to root out the real problems facing our
country, find real solutions. And while this hearing today is
not going to completely resolve all the issues related to
official time in union activities on the taxpayer's dime, I
think this discussion is necessary and pertinent, and we
continue to reform and fix the VA as a whole.
I thank the witnesses for being here. I look forward to
your testimony, and thank you, Mr. Chairman. I yield back.
Mr. Meadows. I thank the gentleman from Texas. The chair
recognizes the gentleman from Texas, the Ranking Member, Mr.
O'Rourke.
OPENING STATEMENT OF O'ROURKE
Mr. O'Rourke. Mr. Chairman, I want to thank you and the
Ranking Member of the Government Reform Subcommittee and my
Chairman of the Economic Opportunity Subcommittee of the
Veterans' Affairs Committee for putting this hearing together,
to the witnesses who have made available to us, and our
government and the veterans that we serve, their time and
testimony, experience, and expertise today. I'm looking forward
to learning from you.
Mr. Chairman, just briefly. On Friday, I had the
opportunity to visit the Veterans' Affairs Medical Center in El
Paso, Texas. There was a full lobby of volunteers greeting
veterans, veterans coming in for their appointments, veterans
leaving, and the staff who serve them. It underscored how
important our mission is here on these Committees, the VA's
mission to our veterans, and also showed some of what is
working that we need to capitalize on.
The veterans that I spoke to, and we know they are not shy
about telling us when things are not working, to a person if
they had seen by a doctor or provider said that they had
received excellent timely care. The staff that I had a chance
to meet, shake their hands, asked them how they were doing,
upbeat, smiling, wanting to serve. But I'm also mindful of the
fact that too many veterans in El Paso and every community in
this country are unable to get an appointment, whether it's
mental health care or primary care or specialty care
appointment, where they're waiting too long on a claim to the
Veterans' Benefits Administration or an appeal to that claim
whose wait time is not measured in months but today in years.
So we have some problems.
I want to ensure that whatever we do capitalizes on the
strengths that we have and addresses those weaknesses and
corrects them. In both cases, that would be dependent on making
the most of the employees that we have at the VA. They are the
ones who in many cases are veterans themselves, in every case
are represented by the unions at the VA, and I would argue, are
fundamental to the solutions that we're looking for.
We have some examples in this GAO report of where
management and employees agree that but for the work of these
unions, we would not be able to train appropriately, we would
not be able to protect and facilitate whistleblowing, and we
would not be able to innovate. I call everyone's attention to
page 20 of the report where GAO quotes a manager who said at a
mental health care program at a VA facility in this country, it
was the employees who were able to suggest a substance abuse
program at a time of opioid crisis in this country, and it was
through the union that they ensured that we had the appropriate
training and perspective on this program so that it would be a
success.
I want to make sure that we're understanding where we have
opportunities. I think, however, we all agree on the
fundamental problem here. VA is not tracking time, and I agree
with everyone here that's a problem. It needs to be fixed. It's
an issue of leadership, of commitment, and accountability.
I don't want to lose what's working at the VA, and I want
to do everything possible to strengthen the ability of every
employee at the VA to deliver excellent care and service.
Lastly, Mr. Chairman, I'd be remiss without noting the 100
to 0 confirmation of the new Secretary of the VA, Dr. David
Shulkin, a person who I know is committed to addressing these
issues who will ensure that we track that time and who will
make the most of the ability of those employees, the employees
we have yet to hire to deliver on our commitment to this
country's veterans. With that, I yield back.
Mr. Meadows. I thank the gentleman from Texas. The chair
recognizes the Ranking Member of the Full Committee, the
gentleman, the avid runner from Minnesota, Mr. Walz for his
opening remarks.
OPENING STATEMENT OF WALZ
Mr. Walz. I thank the Chairman, and I just wanted to thank
both Subcommittees on this. I'll waive my opening statement.
Let's hear from the witnesses. I appreciate the opening
statements from everyone. Thank you.
Mr. Meadows. I thank the gentleman, and I would like to
welcome all of you. I will hold the record open for five
legislative days for any Member who would like to submit a
written statement.
We'll now recognize our panel of witnesses, and we're
pleased to welcome Ms. Cindy Barnes, the director of Education,
Workforce, and Income Security at the U.S. Government
Accountability Office. Welcome, Ms. Barnes.
Ms. Kim McLeod, the acting executive director of labor
management relations at the U.S. Department of Veterans
Affairs. Welcome, Ms. McLeod.
Mr. David Cox, a fellow North Carolinian, the national
president of the American Federation of Government Workers.
Welcome, Mr. Cox.
And Mr. Trey Kovacs, the policy analyst at the Competitive
Enterprise Institute.
And pursuant to Committee rules, all witnesses will be
sworn in before they testify, so if you would please rise and
raise your right hand.
[Witnesses sworn.]
Mr. Meadows. Let the record reflect that all witnesses
answered in the affirmative. You can be seated.
In order to allow time for discussion, we would appreciate
if you would limit your oral testimony to 5 minutes, but your
entire written testimony will be made part of the record.
And so we will recognize you, Ms. Barnes, for 5 minutes.
STATEMENT OF CINDY BARNES
Ms. Barnes. Chairman Arrington and Meadows, Ranking Members
O'Rourke and Connolly, and Members of the Subcommittees, I am
pleased to be here today to discuss GAO's January 2017 report
on Union's Use of Official Time and Space at the VA. Federal
employees, by law, are able to use official time to perform
certain union activities instead of their regular work.
According to the VA, almost 290,000 bargaining unit
employees across the agency spent over a million hours on
official time during fiscal year 2015. My remarks will cover,
one, how VA tracks official time; two, the amount of designated
space used for union activities at selected facilities; and
three, the views of VA managers and union officials on the
benefits and challenges of employees using official time.
For our report we reviewed VA's official time data for
fiscal years 2014 and 2015, and this was agency wide data. We
also analyzed information on designated space at five VA
facilities. We interviewed groups of VA managers and union
officials at the five facilities, and we selected the
facilities based on the number of bargaining unit employees and
also across VA administrations.
The bottom line is that we weren't able to determine the
amount of official time used by VA employees and the purposes
for which it was used because VA doesn't have a standard way
for facilities to record and calculate official time. This
situation exists because of three primary reasons.
First, in terms of recording official time, VA uses two,
time and attendance systems across the agency that capture
information on official time differently. VA's new system, the
VA Time and Attendance System, or VATAS, has specific codes to
record official time, but the older system doesn't. We found
that three of the selected facilities didn't record official
time in either of these systems, the old or the new one.
Second, we found that VA hasn't provided consistent
training and guidance on recording official time in VATAS.
Timekeepers and other officials that we talked to at three
selected facilities that had actually transitioned to the new
system were not using the codes to record official time because
they weren't aware of them. We recommended that VA increase its
efforts to provide consistent training and guidance on
recording official time in VATAS.
Third, we also found that VA doesn't provide a consistent
way for its facilities to calculate and report the amount of
official time used agency wide. To provide agency wide official
time data to OPM, VA uses yet another system, and this is a
labor management relations, or LMR system, that is separate and
distinct from VA's two, time and attendance systems. VA allows
its facilities to use written records, estimates, samples,
surveys, or any combination of these methods to calculate the
amount of official time hours used.
We recommended that VA encourage facilities to rely on time
and attendance records for calculating official time prior to
the agency wide implementation of VATAS. We also recommended
that VA take steps to transition from using the LMR system to
VATAS to collect and compile agency wide data on official time.
VA concurred with all of our recommendations.
With respect to space, we found that the amount of
designated space for union activities at selected facilities
comprise less than 1 percent of overall space available. This
space was primarily office space.
Finally, we found that at most selected VA facilities, VA
managers and union officials we interviewed cited similar
benefits of employees using official time, such as improving
decision-making and resolving problems. However, they had
differing views on the challenges associated with employees'
use of official time, such as when and how much official time
may be used.
In conclusion, our work shows that VA does not have
reliable information to effectively monitor and manage the
amount of official time employees use for union activities.
Thank you. This concludes my statement, and I will be happy
to respond to any questions you may have.
[The prepared statement of Cindy Barnes appears in the
Appendix]
Mr. Meadows. Thank you, Ms. Barnes. And I want to thank you
at the GAO and obviously your colleagues at GAO. You enjoy
bipartisan support, even at times when I would wish you would
be more partisan. I have not been able to encourage--
Mr. Connolly. We feel the same way.
Mr. Meadows [continued]. No doubt. I have not--I've always
found your information to be insightful and helpful, and as
with your testimony here today, we do appreciate not only your
testimony but the work of the GAO as a whole.
Ms. McLeod, you're recognized for 5 minutes.
STATEMENT OF KIMBERLY PERKINS MCLEOD
Ms. McLeod. Good afternoon, Chairman Arrington and Meadows,
Ranking Members O'Rourke and Connolly, and distinguished
Members of the Subcommittees. Thank you for the opportunity to
discuss the progress that the Department of Veterans Affairs is
making towards accounting for official time to provide the best
possible service to our Nation's veterans.
For context purposes, the Federal Service Labor-Management
Relations statute governs how executive branch agencies treat
official time. The statute provides for official time for union
representatives to perform certain union activities. Official
time is duty time during which a bargain unit employee may
perform representational activities in lieu of the employee's
management assigned work without loss of pay or charged to
leave.
The statute provides official time to negotiate collective
bargaining agreements and to participate in proceedings before
the Federal Labor Relations Authority. In addition, the statute
requires management and its unions to negotiate amounts of
official time, which the parties agree are reasonable,
necessary, and in the public interest. Official time
negotiations are mandatory, apply to most Federal agencies, and
include provisions relating to the amount, allocation,
scheduling, and location of official time.
VA has negotiated varying amounts of official time in both
national agreements and local agreements. Many VA facilities
have local official time agreements and practices specific to
their location. Official time arrangements are frequently
distinctively local and reflect the relationship and history
between local management and local union officials.
It should be noted that while management has the right to
negotiate the allocation and use of official time by union
representatives, in ordinary circumstances, the statute does
not give management the right to select which employee serve as
union representatives.
As you're aware, the recent GAO report regarding VA
official time use describes how VA has historically not
implemented a uniform and standardized official time reporting
system. As the GAO report notes, VA is now using two
timekeeping systems, the Legacy system or the enhanced time and
attendance system remains in effect at some facilities. Other
facilities have implemented VA's new time and attendance
system, commonly referred to as VATAS, which--okay. I'm sorry.
Commonly referred to as VATAS. ETA does not have codes for
employees and supervisors to record the local use of official
time. VATAS, however, does have that capability.
As of September 2016, approximately 50 percent of VA
facilities and about one-third of VA employees, or 120,000, had
transitioned to VATAS with its official time reporting
capabilities. The full VATAS multifacility rollout is scheduled
to be completed by July 2018.
The GAO report includes three recommendations to improve
VA's ability to accurately track employee's use of official
time. VA concurs with GAO's recommendations.
VA has updated and expanded timekeeper training on the
collection and reporting of official time in its final ongoing
VATAS nationwide rollout. Training now includes consistent
guidance on the proper method of inputting official time codes
into VATAS.
VA is providing updated written instructions to all of its
facilities seeking to establish and enforce a standardized
approach to recording and reporting official time across VA. VA
also intends to initiate bargaining with its national unions to
come to an agreement with them on a standard approach to have
union officials request, record, and report their use of
official time in VATAS.
VA's Office of Human Resources and Administration is
preparing updated policy guidance to all VA facilities
concerning the recording of local official time. For those
facilities where VATAS is already operational, timekeepers and
supervisors are instructed to use VATAS to record the use of
official time.
As VA transitions to a single upgraded timekeeping system,
official time use will become more transparent and
standardized, which will guarantee accurate, timely, and
reliable accounting of official time used across the agency.
Relying on VATAS, VA will be able to quickly compile and report
official time data to OPM, Congress, and to other government
agencies, and will have a substantially enhanced ability to
monitor use of official time at individual VA facilities.
This concludes my testimony. I'm happy to answer any
questions.
[The prepared statement of Kimberly Perkins McLeod appears
in the Appendix]
Mr. Meadows. Thank you, Ms. McLeod.
Mr. Cox, you're recognized for 5 minutes.
STATEMENT OF J. DAVID COX
Mr. Cox. Chairman Meadows and Arrington, Ranking Members
O'Rourke and Connolly, and Members of the Committees, thank you
for the opportunity to testify today.
It would be great if this hearing were only about the
findings of the GAO report on VA's recordkeeping with regard to
official time, but the very right of Federal employees to form,
join, and be represented by their unions seems to be in
question.
However, that question was settled 40 years ago when
Congress enacted Civil Service Reform Act and stated clearly,
and I quote, ``labor organizations and collective bargaining of
the civil service are in the public interest.'' The law goes on
to require Federal employee unions to provide a wide range of
representational services for all employees under a collective
bargaining union.
In order to carry out that these legal obligations, the law
provides for, quote, ``official time in the amount the agency
and the exclusive representative involved agree to be
reasonable and necessary and in the public interest.'' In the
VA, AFGE does far more than just represent and negotiate
contracts. We also work hand-in-hand with management on a daily
basis to make the agency run better by participating in many
forums and initiatives, including MyVA that promote the
effectiveness and efficiency of the agency by helping to
improve work processes and patient safety. AFGE also assists
and supports whistleblowers who come forward to report
instances of fraud, waste, and abuse that would not otherwise
be known.
The GAO report confirmed, in most cases, management agrees
that the involvement of the union leads to better decision-
making, faster resolution of problems, and long-term
improvements in labor management relationships. All of these
positive outcomes provide real substantial benefits to veterans
through better care, faster claims processing, and less waste
of precious VA resources.
We should bear in mind that while the GAO study did find
shortcomings in VA's recordkeeping for official time, there was
not the slightest suggestion that union officials withheld any
data or information or provided inaccurate information. The
findings and recommendations are all aimed at improving the
training of timekeepers and standardization of data collection
methods.
We estimate that more than one-third of the VA workforce
are veterans themselves, but I can tell you from personal
experience that the entire VA workforce takes tremendous pride
in the fact that they have been entrusted with a sacred duty of
caring for and providing benefits to our veterans.
It is particularly unfortunate when union representatives
are blamed for VA's chronic understaffing problems. These
representatives, like Cathy Dahl of Pittsburgh VA, are helping
veterans but telling the truth about Legionnaires disease.
These representatives like Dr. Michelle Washington of the
Wilmington VA are helping the veterans by telling the truth
about resources for treatment of PTSD.
These representatives, like Pauline Dewinter of Phoenix VA,
telling the truth about how management manipulated wait lists,
many others are coming forward to tell the truth about chronic
problems with the CHOICE Act, including forcing veterans to
accept outside care even when they want to be seen by the VA
specialist who know them best.
There are roughly 45,000 unfilled positions in the VA, and
reducing our ability to perform our representational duties
will not even fill a small fraction of those jobs but it would
hurt the agency's ability to care for veterans. The VA's
recruitment and retention problems reflect not only the
inadequacy of Federal pay and benefits, especially for new
hires, but also the national shortage of primary care
clinicians has nothing whatsoever to do with official time.
I'll leave you with one last thought. So, many try to turn
official time into some type of scandal, but the fact is that
official time is the anecdote to scandal. It's what empowers
employees to do their job more effectively and provide veterans
with better care. Veterans deserve nothing less than the
absolute best.
Thank you, Mr. Chairman. I'll be glad to respond to any
questions, and it's very nice to have someone that has a
distinctive drag like I have chairing the Committee.
[The prepared statement of J. David Cox appears in the
Appendix]
Mr. Meadows. Well, we don't need a translator, do we?
Mr. Cox. No, we don't.
Mr. Meadows. The only one that has a better accent,
southern accent than I do is the gentleman to my right when he
puts it on. So Mr. Kovacs, you're recognized for 5 minutes.
STATEMENT TREY KOVACS
Mr. Kovacs. Chairman Meadows and Arrington, Ranking Members
Connolly and O'Rourke, and distinguished Members of the
Committees, thank you for holding this hearing and providing me
the opportunity to discuss official time.
Few Americans are aware that each working day Federal
employees report for work but do not perform any governmental
duties. Instead, they perform work for their Federal employee
union, a private organization that does not serve a public
purpose. It serves the interest of its members.
Taxpayers pay for these employees' wages, pensions, and
health care benefits while they are performing union business.
Taxpayers also pay for their office space, supplies, and
travel. For decades, Federal employees have been conducting
union activities instead of delivering the public services they
were hired to do. Official time is costly, not properly tracked
and reported, and can disrupt the delivery of public services,
the practices and misuse of public funds, because official time
activity serves the private interest of Federal unions, not the
American people.
Instead of carrying out their duties, employees use
official time to lobby Congress, attend union conventions, file
grievances, and perform other union activities. While taxpayers
do not benefit from official time, Federal unions benefit
greatly.
According to the latest data available from the Office of
Personnel Management, official time costs taxpayers $157
million, with Federal employees spending 3.4 million hours
conducting union activities. However, OPM's figures are mere
estimations and inaccurate ones at that. According to a 2014
Government Accountability Office report, the methodology used
by OPM to estimate the cost of official time is inaccurate. The
report finds that OPM estimations have shortcomings, such as
not using the actual salaries of employees who use official
time.
Using a more sound methodology, GAO found that four of the
six agencies that examined, official time costs about 15
percent more or higher than OPM estimate. Besides using an
unreliable methodology, OPM does not track all costs associated
with official time. For example, the OPM survey does not
account for the cost of travel, per diem, office space,
telephones, and equipment related to official time. These costs
add up. The Social Security Administration is required to
calculate these non-payroll costs, which in fiscal year 2015
amounted to $2.2 million, or about 15 percent of the total cost
of official time at the agency.
Another reason that official time costs are likely higher
than reported by OPM is because reports investigating Federal
agencies have found not all official time activity is tracked
and reported. The recent GAO report on official time at the
Department of Veterans Affairs shows that the agency does not
know how many official time hours are used. The inability to
monitor what activity takes place on official time means it is
unknown whether the public's resources are being used
effectively.
No matter the cost of official time, all Federal funds need
to be spent wisely and in the interest of taxpayers. When
Federal employees perform union activities instead of their
government duties, it detracts from the efficient delivery of
public services.
For example, the Department of Veterans Affairs has a
significant patient backlog that could be partially remedied by
putting official time employees back to work performing their
regular government duties. Over 80 nurses at the VA work 100
percent of the time on union activities. Their time would be
better spent treating patients.
Official time is an unnecessary subsidy to Federal unions
that serves the interest of unions and their members, not the
public.
In conclusion, Congress should consider eliminating
official time, and short of that, require detailed annual
reporting of official time to improve the tracking of Federal
employees' union activity performed on official time. Taxpayers
have a right to know how much of their tax dollars are used to
finance official time and what union activities Federal
employees undertake instead of the job they were hired to do. I
applaud the Committee's inquiry into the use of official time.
Thank you, and I look forward to your questions.
[The prepared statement of Trey Kovacs appears in the
Appendix]
Mr. Hice. [Presiding.] Thank you, Mr. Kovacs, and thanks to
each of our witnesses for your testimony. We will now begin a
series of question, and the chair will begin by recognizing
Chairman Arrington for 5 minutes.
Mr. Arrington. Thank you, Mr. Chairman. Let me preface by
saying I know there are a lot of great Americans at work at the
VA and that want to serve our veterans as badly as I do or
anybody on this Committee.
I think the entity, I think the system, I think the
bureaucracy, I think the union dynamic, the civil service
dynamic has been taken way to the extreme and has been abusive
and is not allowing us to perform or manage for performance so
we can serve the customer, which is the veteran and the
taxpayer.
This question is for Ms. McLeod and Mr. Cox, and let me
start with you, Mr. Cox. You mentioned the authorizing
legislation or the statute that created the ability to unionize
in the Federal Government. My reading of that says that the
official time must be performed with respect to
representational work. So given the access issues, given the
backlog issues and challenges that we've talked about--let me
back up.
The other pieces of--language in that legislation says that
the time spent working on official time must be reasonable,
necessary, and in the public's interest. So given the
challenges that we laid out in our opening statements, or at
least in mine, do you believe that having somebody work 100
percent of their time on union activities is reasonable,
necessary, and in the public's interest?
Mr. Cox. Ranking--Mr. Chairman, we've got so many chairmen
and Ranking Members today.
Mr. Arrington. We're good.
Mr. Cox. Okay. Let's go to official time. There was a
statute passed. There are those that believe that unions and
official time are not important to the government and not
important to the service of veterans. For employees performing
official time duties as union representatives, it's not just
representing in grievances or collective bargaining agreements.
They serve on many committees such as deals with the electronic
medical record that the VA developed that everyone in this
country is now using, patient safety issues that Dr. Bejing
(ph) started many, many years ago about patient safety that's
modeled after the FAA regulations that deal with how to report
medical errors to prevent them from happening and--
Mr. Arrington. Mr. Cox, let me just--may I just interrupt
just for--with all due respect. My question is, not what do
they do, but if they spend 100 percent of their time on union
activities, 100 percent of their time, is that reasonable,
necessary, and appropriate?
Mr. Cox. I would describe it that they spend their time on
government activities, not union activities, because the law
requires the unions to perform and to represent everyone in the
bargaining unit.
And so, therefore, union activities that are internal to
the union cannot be performed on official time
Mr. Arrington. Ms. McLeod, do you believe these are
reasonable, necessary activities when somebody is spending 100
percent of their time and that that's in the public's interest?
Ms. McLeod. Chairman Arrington, what I can tell you is that
the VA has been negotiating, at least at the national level,
with putting some limitations on the amount of 100 percent
union time officials. We have negotiated with a couple of our
labor partners, new master agreements in the very recent years
that do not have the number of 100 percent official time, union
representatives, as you are now seeing.
I don't know at the local level, which is where most of
these 100 percent official time representatives come from,
these are local negotiations. I wasn't sitting there, and I
don't know how they determine at the local level what was
reasonable and necessary and in the public interest, but I can
tell you at the national level what we're doing.
Mr. Arrington. The VATAS, is that what you--how you
pronounce it, VATAS, the system for tracking. I read that this
process for creating this tracking system started in 2013, and
to date, we still don't have it. It's supposed to be
implemented by July of 2018.
Ms. McLeod, can you explain why it's taken 5 years to put a
tracking system together and roll it out?
Ms. McLeod. I can't explain that. Unfortunately, that
process is being managed by another aspect of the Department. I
can tell you that when the VATAS system initially rolled out, I
think there were some issues and some hiccups, and they had to
go back and re-engineer and change some much things on that,
and then they had to re-roll it out, but we have been adding,
you know, training components into the VATAS system for
timekeepers to be able to accurately input official time
records.
Mr. Arrington. Thank you. I yield back, Mr. Chairman
Mr. Hice. I thank the gentleman. The chair now recognizes
the Ranking Member, Mr. Connolly for 5 minutes
Mr. Connolly. Thank you, Mr. Chairman.
Mr. Kovacs, listening to your testimony, you seem to
believe that any moment, any minute spent by anybody who is for
the union, a union official is an opportunity cost. It's lost
time. Is that correct?
Mr. Kovacs. That is correct.
Mr. Connolly. Well, that's a belief. That's not an
analysis.
Mr. Kovacs. And I would also--
Mr. Connolly. Thank you. Ms. Barnes, I heard your
testimony, and if I'm getting it right, here are your
conclusions. There's inconsistent time and attendance metrics,
right, they're using different systems, and not all of the time
can easily be measured because of the lack of uniformity and--
but there are benefits to official time, correct?
Ms. Barnes. Yes, we did find some benefits.
Mr. Connolly. Right. Which of course would counter Mr.
Kovacs'. You actually acknowledge there are benefits to be
accrued by official time. The problem is making sure we're
capturing all of that accurately. Is that correct?
Ms. Barnes. That is correct.
Mr. Connolly. Did you find any? Did your report conclude
there was abuse of official time?
Ms. Barnes. We didn't set out to even look at that.
Mr. Connolly. All right. But if you stumbled upon it, you
might mention it. I worked with GAO for a long time.
Ms. Barnes. Yeah, that wasn't one of our objectives but--so
we didn't conclude on that at all.
Mr. Connolly. Find any evidence of it?
Ms. Barnes. Not for--in this study.
Mr. Connolly. Ms. McLeod, do you all have any evidence of
massive abuse or a partial abuse or occasional abuse of
official time?
Ms. McLeod. No, sir.
Mr. Connolly. I'm sorry?
Ms. McLeod. No, we don't.
Mr. Connolly. No. The testimony is no. Okay.
So let me ask a different set of questions here, Ms.
McLeod. You're going to have to speak up a little bit. So 32
percent of the VA's employees are veterans. Is that correct?
Ms. McLeod. I believe so, yes.
Mr. Connolly. So that works out to 115,000 veterans serving
veterans in the VA.
Ms. McLeod. Yes.
Mr. Connolly. Correct. So now I understand that there are
9,000 vacancies currently at the VA. Is that correct?
Ms. McLeod. I don't know the precise numbers.
Mr. Connolly. How about you take a guess that's about
right?
Ms. McLeod. Sounds about right.
Mr. Connolly. All right. So let's speculate or stipulate
that's correct. If you want to come back to us and say, no,
it's 9,721, you can do that, and I want to enter into the
record, with unanimous consent, Mr. Chairman, the vacancies by
State and exemption existing in the VA today.
Mr. Hice. Sold.
Mr. Connolly. Thank you, Mr. Chairman.
So if there are 9,000 vacancies and about 32 percent, our
veterans currently, you could say that in theory there are
3,000 positions that could be filled by a veteran that won't be
because of a hiring freeze. Fair enough?
Ms. McLeod. Sure. Yes.
Mr. Connolly. Okay. So we're talking about the opportunity
cost of official time, but what we're not talking about is
9,000 jobs, at least 3,000 of them logically filled by a
veteran that are going to go begging, and these are for
critical functions; are they not, Ms. McLeod?
Ms. McLeod. Yes.
Mr. Connolly. I would ask for the chart, if we've got it,
to show the State chart of unfilled Veterans Administration
jobs right now.
Okay. It's a little hard to see, but for example, Georgia,
254; Maryland, 164; North Carolina, your State, Mr. Cox, and
our Chairman's, 343. So I guess I would just suggest that these
vacancies are what we ought to be talking about, the hiring
freeze and the damage of the hiring freeze can do to VA and to
the service of our veterans.
We say we're committed to the eating into the backlog, we
say we're committed to trying to streamline services and fix
CHOICE and make sure people are diagnosed in a timely fashion,
and the problem isn't official time.
The problem is these vacancies, and now we've got on top of
that a hiring freeze that's going to make it, I think, doubly
difficult to fill them.
Ms. McLeod, does a hiring freeze complicate filling a
vacancy?
Ms. McLeod. Yes, I would think so.
Mr. Connolly. You would think so.
Mr. Cox, did you want to comment on that, since you've been
the subject of discussion here on official time, and I kind of
am bothered by the fact that we're ignoring the elephant in the
room.
Mr. Cox. The VA's new Secretary that I believe was
confirmed unanimously the other day, which is a miracle to
happen at this point in life, says there's 45,000 vacancies in
the VA right now.
Mr. Connolly. So I'm understating the problem.
Mr. Cox. And that would be my assumption, and I couldn't
tell you if that number is a fact of what they're saying is now
frozen versus they are going to fill others, but Secretary
Shulkin said there's 45,000 vacancies in the VA currently.
Mr. Connolly. Wow. My time is up. I thank you, and I thank
the panel for being here.
Mr. Hice. I thank the gentleman. Just for the record, the
President has exempted 94 positions at the VA for--from the
hiring freeze. I have a memo here from January 27, 2017. I ask
unanimous consent for it to be placed into the record, and
without objection, so ordered.
Mr. Connolly. The chair is--Mr. Chairman, I certainly do
not object. Thank you for pointing that out. I was simply
pointing out, it's great to have 94 exceptions, but we have
9,000 vacancies, and Mr. Cox say it's even more.
Mr. Hice. Thank you. The chair is now going to recognize
himself. I am fascinated by this whole discussion. I've been
heavily involved on this issue on official time for quite a
long while myself. It's amazing to me that we could have
government employees who have been hired to do one thing and
they come on board, at the expense of the taxpayers, only to do
something else, and all too often it's 100 percent of their
time.
I just came across in another, in fairness, another agency,
but an individual who was hired to do a particular job. For 8
years now they have not one day accomplished the job that they
were hired to do and making well north of a $150,000 a year.
This is to me just an unthinkable thing that's happening
where people are exclusively doing union activity when they
were hired to do something else day after day after day, month
after month after month, and yet still being paid by the
American taxpayer.
Ms. McLeod, I would like to begin with you. 2012, the VA
reported having 259 people who were on 100 percent official
time. That has increased to almost 350 just in the last couple
of years, from 3 years later to 2015. That's a big increase
from 250, almost 100 people, more or less, let's just round it
off, 90 people increase.
How does the VA account for this increase? What's behind
it? What was the necessary cause?
Ms. McLeod. There is likely a few things behind it.
Probably an increase in employees. There's probably also the
reason being, you know, term negotiations.
We've had some term negotiations on some master agreements,
and so that would require official employees to be on official
time to participate in those negotiations, local bargaining or
negotiating on numbers and additions to 100 percent official
time employees.
Mr. Hice. Okay. Let's move on, because I've got a lot of
questions, and I want to get to--so if you could get your
answers brief and to the point, I would appreciate it.
We also, during that time, obviously, have had veterans
who've had tremendous needs waiting in long lines as has
already mentioned, some even passed away waiting while we've
had an increase of people going to official time 100 percent of
the time, not to mention, those that are using significant
amount of part-time to do official time.
Does the Department restrict who can go on official time?
In other words, are there certain occupations, carpenters, lab
technicians, is there any certain group that is allowed
official time or any group that is denied 100 percent?
Ms. McLeod. The Department has no control over who the
union decides will have the official time.
Mr. Hice. [Presiding.] Okay. So anyone can, so anyone who
requests it. Is that how it works?
Ms. McLeod. Well, those people are chosen by the unions
inside the agency to provide that work.
Mr. Hice. Okay. All right. Last year, I joined Chairman
Chaffetz and Meadows in sending a letter to the VA requesting
official time data, and in reviewing that, I found some
incredible information to me, such as there were 90 nurses who
were on 100 percent official time. I found 3 addiction
therapists, a certified respiratory therapist, 13 nursing
assistants, 3 pharmacists, 6 pharmacy technicians. I even found
a doctor who specializes in providing limbs to veterans who
lost their limbs in the service to this country, in Orlando,
Florida, a specialist, and he's giving 100 percent of his time.
Have these individuals been replaced?
Ms. McLeod. My understanding, sir, is that we backfill
those positions where the individual's on 100 percent official
time.
Mr. Hice. You backfill them with new hires?
Ms. McLeod. That's correct.
Mr. Hice. So the American public is having to hire two
people for the work of one. I mean, this is an outrage to me to
think that this is taking place. Mr. Cox mentioned that the
positive outcome--I see no positive outcome in having to hire
two people for the work of one. Not that people doing union
work don't accomplish some good, but positive outcomes? We're
creating a bureaucracy that's all on the shoulders of the
American taxpayer, and we're coming in here trying to convince
ourselves that this is a good thing.
Ms. McLeod, when you have an employee who is doing this,
you were saying that you have to hire someone else to do the
job that the first person was hired to do. Is that correct?
Ms. McLeod. If that individual is on 100 percent official
time and that particular occupation is necessary, the agency
will backfill that position and hire someone.
Mr. Hice. Okay. Mr. Kovacs, let me come to you. And I thank
you for your work in this area as well. I think you share the
same concern and outrage that I share and many of us do on
this.
Something else that I found stunning is that the Federal
employee unions can actually lobby Congress while on official
time so that they get paid by the taxpayers literally to lobby
Congress. Is that accurate?
Mr. Kovacs. Yeah, that is correct, on desired and pending
legislation.
Mr. Hice. Okay. Is that legal?
Mr. Kovacs. Yes, that is legal, although I think--although
the Federal Labor Relations Authority has deemed it
appropriate, I don't know how it squares with being, you know,
necessary and in the public interest.
Mr. Hice. Mr. Cox, it's actually on you all's Web site that
these on official time can lobby. Is that correct?
Mr. Cox. There are certain issues that can be lobbied
before Congress on official time that would deal with matters
pending before Congress, such as, if you will remember, several
years ago you adopted the advanced appropriations for the VA,
the only agency that gets funded 2 years in advance. While many
other agencies are now talking about how great an idea that
would be, that would be an issue before Congress that many
people would want to encourage and lobby for.
Mr. Hice. Mr. Kovacs, to me it's pretty clear that current
law prohibits Federal employees explicitly, they're prohibited
from lobbying and engaging in political activity with the use
of appropriated funds.
Mr. Kovacs. Yes. The Anti-Lobbying Act does prohibit--
Mr. Hice. Anti-Lobbying Act.
Mr. Kovacs [continued].--prohibit Federal employees.
Mr. Hice. So what am I missing here?
Mr. Kovacs. So even though Federal employees on official
time are considered in duty status, concerning pay, concerning
lobbying, you know, they are not.
Mr. Hice. And why are they not?
Mr. Kovacs. That's what the Federal Labor Relations
Authority has decided over the years in its decisions.
Mr. Hice. Okay. My time has expired. I appreciate the
others' sharing indulgence.
The chair now recognizes Mr. O'Rourke for 5 minutes.
Mr. O'Rourke. Thank you, Mr. Chairman.
Let me begin by thanking Ms. Barnes and the GAO for another
excellent work product and helping us to make informed
decisions in our jobs and the policies that we're working on
and the decisions that we're making. So I greatly appreciate
it.
I wonder if you could begin by clarifying for me a
statement made by the Chairman from North Carolina when he said
that VA employees use more official time than any other
government agency. The latest year for which we have reliable
information is 2012, and I notice on page 1 of your report, the
rate of official time at VA during fiscal year 2012 was lower,
compared to several other large agencies, such as Treasury and
Transportation.
Can you explain the discrepancy between the Chairman's
statement and your finding on page 1? If not, I'll take it for
the record. I just want to understand it. I'm sure he does as
well.
Ms. Barnes. Yeah. I'll submit it for the record. We only
looked at VA. There was another GAO study that looked more
government wide.
Mr. O'Rourke. Okay. Thanks.
Is it Ms. McLeod, is that the appropriate way to say it?
Ms. McLeod, thank you also for your work and your answers
so far today. So my understanding, you said earlier that VA
management cannot choose who it is that will serve in official
time on behalf of the union and the employees that the union
represents, but it can help set the percentage of time that is
spent on these issues. Is that correct?
Ms. McLeod. That's correct.
Mr. O'Rourke. And you alluded to that happening on a local
basis today, but perhaps the new Secretary will want to
standardize that across the VA.
Ms. McLeod. That's correct. It has been, at least the
Office of Labor Management Relations' direction, that as we sit
at the table at the national level and negotiate national level
master agreements, that we've been putting some limitations on
the number of 100 percent official time employees.
Mr. O'Rourke. I share Chairman Arrington's concern about
how long it has taken the VA to standardize its process to
record official time. I think everyone here is deeply
disappointed in that, frustrated by that. I notice in the GAO
report that the VA is making a commitment to have this issue
addressed, at least systematically, the IT infrastructure that
you're using, by July of 2018. Is that a credible goal?
Ms. McLeod. That's correct.
Mr. O'Rourke. The VA is going to hit that. You're on the
record saying VA by July 2018 will have a unified system which
every employee using official time will use so that we have
reliable information upon which to make our decisions?
Ms. McLeod. That is what we are going to endeavor to do,
yes.
Mr. O'Rourke. Okay. Just to be clear on the record, you
said you will try to do that, not that you will do that. I am
for the record going to submit a request to the Secretary. I
would like his response in writing, and I would be very happy
to share it with the Committee. We absolutely have to have the
VA deliver on that.
I'll tell you, reading this, it's clear to me that this has
not been a priority for the VA. The VA at the highest levels of
leadership just has not cared about this issue. Otherwise, we
would have one unified system. Otherwise, we'd have reliable
data today in 2017, not dependent on information that's, at
best, 5 years old. So I want to see a real commitment in
writing on paper to which we can hold you and the Secretary
accountable for. So I'll be looking for that.
I would also like to say, Mr. Chairman, that I'm grateful
to hear from almost every Member of this Committee their
assurance that they are not opposed to union representation at
the VA, that they see value in official time, that where we do
have a problem is in accounting for that time and understanding
how it is allocated, whether it's 100 percent or 50 percent. I
think those are things that we can resolve and, again, issues
that can be corrected with the appropriate leadership. And I'm
again very glad to see that we'll have Dr. Shulkin at the helm
as our new Secretary confirmed 100 to 0.
Mr. Cox, finally, would you share with us, either
anecdotally or through data, preferably, why it might be in the
public interest to have someone spend 100 percent of their time
on official time? Why does that make sense? I think that's a
really legitimate question that people we represent are asking
us.
Mr. Cox. The VA is a very, very diverse organization that
has lots of professions and occupations in it. The law requires
for official time. There are medical center directors that have
decided it would be better to have one person that that's what
they're doing versus to have four or five people that's taking
20 percent here, 20 percent there, 25 percent, because there is
an orderly flow to the work that may happen, and you know that
that's how you program and plan your work.
Mr. O'Rourke. So if I could--and I'm sorry to interrupt
you, just as my time expires, if I could sketch out a scenario,
you have a VA director who has more demand than she has
capacity, wants to maximize the workforce under her command and
so says instead of me working with 15 different employees all
working at varying percentages, there's one person that I'd
like to go to who I can rely on 100 percent of the time to
address issues of negotiation or training or workplace safety
or other issues that are within the public interest and the
interests of the veterans that we serve.
Mr. Cox. Yes.
Mr. O'Rourke. Thank you very much.
Mr. Chairman, I yield back.
Mr. Hice. I thank the gentleman.
The chair now recognizes Mr. Wenstrup for 5 minutes.
Mr. Wenstrup. Thank you, Mr. Chairman. Thank you all for
being here today.
You know, as a physician, I'm one of the many physicians in
America that had the benefit of spending some time training in
a VA, and I appreciate the opportunity to take care of veterans
and to have that be a part of the training that I obtained.
I got here 4 years ago, and this was before the situation
at Phoenix broke, and I remember asking all the VHA
administrators if any of them had ever been in private practice
where quality and productivity were necessary elements to keep
your door open, to be in the black, and none of them had. And I
think that was a major deficit for our administration at that
time because they don't know what they don't know.
But on the subject of productivity, I would appreciate, Mr.
Cox, if you could, for the record, send to me any products that
the union has produced that addresses ways to increase
productivity and patient care. So for the record, I would like
to have that from you, if there is such an item.
And I do feel for hospital administrators in this situation
because they're trying to provide for patients and render
patient care, and that needs to be a reliable source of
caregivers. And their time has to be well-defined to when they
are there and able to take care of patients, and that seems to
be missing in this situation.
And I'd like to address something too that Mr. Connolly
brought up, and he made a point about the jobs for veterans,
but let's keep in mind, these jobs exist because veterans need
care. A secondary benefit would be that some people have jobs,
but the first priority is that veterans need care, not because
we need to create jobs for veterans. That's the primary
mission.
I have a question for you, Mr. Cox. Do your members pay
dues?
Mr. Cox. Those that choose to join pay dues. However, there
is no requirement for anyone to--
Mr. Wenstrup. Okay. So you have space within the VA, and
that's paid for by the taxpayer?
Mr. Cox [continued]. Yes, sir. And we're required by law to
represent all employees and the bargaining unit--
Mr. Wenstrup. Okay. I just asked you a question. The
taxpayer pays for that space.
Does the taxpayer pay for your copiers and everything else
that you may need to have an office?
Mr. Cox. That would depend upon what the union had
bargained or negotiated either nationally or locally.
Mr. Wenstrup. Essentially, yes then. If it's bargained for,
I understand. That's a legitimate answer to me. But I just want
to know if that's in the agreement right now, because I don't
think that's the same for other unions throughout the country
in many, many situations.
Let me ask you this, Mr. Cox. Does the union have a mission
statement, and especially a mission statement for VA employees?
Mr. Cox. When you ask for a mission statement for VA
employees, our mission statement, we support the VA also, and
we're--
Mr. Wenstrup. But you don't officially have a mission
statement.
Let me ask you this. Let me ask you the priorities. Because
that's a yes or a no. If you don't have one, you don't have
one. But let me ask you the priorities that may exist. If you
were to put forth a mission statement, what would be the
highest priority of who you're serving, for example? Are you
serving the taxpayer, the veteran, or the union? Could you list
those one, two, three for me, what you think the mission
statement would look like?
Mr. Cox. If you're asking for me to answer that particular
question, that may be difficult. I would tell you that I
believe any VA employee would tell you their first priority is
to care for the veteran. And I would go back to Deputy
Secretary Hershel Gober many years ago, that if we don't also
care for the employees, we won't be able to care for the
veterans, and many of the employees are veterans. And I think
every employer wants that to be a good work environment and to
be a good employer, to resolve problems in the workplace, make
sure that people are treated fairly, promoted properly, and
that there is a good merit system, a process. So I think they
go hand in hand together, sir.
Mr. Wenstrup. I think they certainly can go hand in hand. I
just wonder if there's some analysis if that's actually what's
taking place.
And maybe, Mr. Kovacs, do you have some analysis of that or
have you ever looked at that and created an analysis as to what
the priorities seem to be?
Mr. Kovacs. Well, I would say, unfortunately as the GAO
report states, we really have no reliable data of, you know,
how many hours of official time are being taken or what, you
know, exact duties are being performed. You know, OPM, the most
reliable study on it breaks it down into four categories: You
know, midterm bargaining, term bargaining, dispute resolution,
general labor management.
Well, 75 percent of official time is all used on general
labor management. I'm not sure exactly what that means and what
activities take place. I would assume lobbying and going to
union conventions would fall into that, but I don't know what
else that would entail.
Mr. Wenstrup. Thank you very much. And I just have a few
seconds.
I appreciate what you're saying, Mr. Cox, from the
standpoint as a caregiver, you want an environment that can
work where the person that's giving the care can render it
effectively and work towards that means. But keep in mind that
it's the veteran that we're there to take care of first, and
that should be a priority. And when you're on the time of the--
on behalf of the veterans, that should be the priority.
Thank you, and I yield back.
Mr. Hice. I thank the gentleman.
The chair now recognizes Mr. Takano for 5 mines.
Mr. Takano. Thank you, Mr. Chairman.
My Republican colleagues have suggested that the 346 VA
employees who use 100 percent official time are standing in the
way of veterans' access to care, but I would suggest if we
really care about improving veterans' timely access to quality
health care, wouldn't it make sense for Congress to focus our
efforts on giving VA the recruiting tools it needs to fill the
over 45,000 current vacant positions in the VHA?
Do you have a response to that, Ms. McLeod? Would we not
better be focusing our attention on giving you the recruiting
tools that you need to fill those 45,000 vacancies?
Ms. McLeod. Sir, I mean, the VA would certainly appreciate
being able to fill the vacancies that we have.
Mr. Takano. Mr. Cox, do you have anything to add to that?
Mr. Cox. Certainly. I believe everyone would benefit by
filling those vacancies. Number one, we would see those wait
lines go down. We would see veterans properly cared for and
taken care of. We would see also the employment, if it's 45,000
jobs, 30 percent veterans, we would see at least 15,000
veterans get jobs. So I think the benefits of filling those
jobs would compound themselves over and over.
Mr. Takano. Because we're not talking about jobs created
just for the sake of jobs, are we? We're talking about jobs
that really are going to serve the needs of veterans, right,
Ms. McLeod?
Ms. McLeod. That's correct.
Mr. Takano. You know, I read a big--you know, this
ballyhooed thing about Carrier, we're saving 1,500 jobs in
Indiana, but we have 45,000 jobs that are necessary to serve
our veterans. Our veterans are being hurt because those jobs
are not being filled. And I don't understand why this
administration wants to put a freeze on employing people that
are absolutely needed to help our veterans. The hiring freeze--
according to Comptroller General Dodaro, the hiring freeze has
caused agencies to hire contractors, which was more expensive
than hiring Federal employees, and it didn't reduce the size of
the workforce. It caused agencies problems in implementing
their missions, end quote.
That's what I am scared of happening, is that this hiring
freeze is going to cause us to rely on more expensive
contractors, and actually we're not going to achieve any
shrinkage in the number of people we need to serve our
veterans.
According to the VA, job applications at the VHA are down
78 percent since 2014. Isn't the real problem that the VA needs
from Congress is more tools to recruit more qualified providers
to fill these vacancies? I think we need to streamline the
hiring process.
President Trump issued a Federal hiring freeze in January,
but the VA Secretary has exempted already over 90 occupations
from this freeze to protect the public safety. And most of
these exempted positions are for health care providers in VHA,
but no occupations in the VBA were exempted, leaving 763
vacancies. These vacancies could be filled by veterans or
veteran families, as you mentioned, Mr. Cox. At least one-third
of our hires at the VA are veterans. But now these vacancies
will remain unfilled. These will be 763 potential employees who
will not be hired to help veterans get their benefits faster.
The disability claims backlog is now over 100,000 claims, and
the appeals backlog is over 600,000.
How will these 763 VBA vacancies hurt veterans, Ms. McLeod?
Ms. McLeod. The work that those individuals would be doing
won't get done, and so veterans won't have those services.
Mr. Takano. I would say 600,000 appeals backlog, 100,000
claims in the disability backlog would imply to me that these
employee--the categories in the VBA should be exempted as well,
that this hiring freeze was highly, highly political and
highly, highly expedient.
How does the hiring freeze make it more difficult for
current VBA employees to do their jobs, thus increasing the
need for official time to resolve workplace challenges and
disputes? Mr. Cox.
Mr. Cox. Obviously, when people become stressed and more
issues go on in the work environment, there is a greater need
to resolve those disputes and to move forward, so the stress of
working in VBA is very tough. My wife works for VBA, will
retire the last day of this month, thankfully, but takes her
job very, very seriously. And it is a stressful job because
they understand there is a veteran at the end of that claim
that deserves that claim and needs that claim, and they want to
get it processed immediately. And they worry about getting it
done before the veteran takes their last breath.
Mr. Takano. Well, thank you. So my time is running out, but
so amid all this stress, there does need to be a better
accounting for official time, but this is the environment in
which VA is being asked to track official time, but official
time is definitely needed in terms of the added burden and
stress that we have of a workforce that is woefully
understaffed.
I yield back, Mr. Chairman.
Mr. Hice. I thank the gentleman.
The chair now recognizes Dr. Roe for 5 minutes.
Mr. Roe. Thank you, Mr. Chairman.
I think both sides of the aisle are trying to do what is
best for veterans. And, Mr. Cox, I think when you were
searching for what the mission statement was, I think Abraham
Lincoln said it better than anybody: ``To care for him who
shall have borne the battle.'' That's what our job is.
And I can just tell you that the number of employees at the
VA is not too little. When I got to the U.S. Congress in 2009
and was sworn in to uphold the Constitution, there were about
260,000 people that worked for the VA. Today, there are over
360,000 people who work for the VA. And I wonder--and we've
gone from a budget of around $97 billion to almost $180 billion
in 8 years, while the rest of the discretionary budget has
stayed basically flat. We took that money away from education
and others to put it in veterans.
And, basically, I'm not interested in how many people work
for the VA. I'm looking for how hard and how well we fulfill
that mission. Let me just share with you a frustration that I
have. At a time when there are over 475,000 appointments
scheduled 30 days or out for veterans' requests, we've got
critical employees like one in Los Angeles, a physician making
$212,000 a year who spends 100 percent of his or her time--I
don't know what they are--but on official time, not seeing
patients.
Another whistleblower provided this information that shows
that another emergency room physician at the North Chicago VA
Medical Center is paid $240,000 and is currently 100 percent on
official time. How do I explain that to a veteran when you've
got a fully trained, board certified doctor, when you can't--
that's one of the problems, they're backed up forever to get
in, how in the world do you explain that to people? And one of
your members, a primary care doctor based in Los Angeles,
$212,000, that is data that we have.
So we understand, and I'm not saying--we certainly
understand that there can be a union. I understand that. I grew
up in a union household, so I understand that. But when you
have time that you're paid to be a doctor, how does that help a
patient who can't see that doctor? Anybody want to take that?
You got a board certified doctor and you have no access to him.
And we're short of providers. And I can tell you, when you've
hired 100,000 people like the VA has since I've been in this
Congress 8 short years, it is not for lack of personnel and not
for lack of money. The taxpayers have provided for our
veterans.
Mr. Cox. Dr. Roe, and I enjoyed our meeting the other day,
and I think you know our commitment to the VA. I also believe
all of Congress understands that a union cannot discriminate
against who runs for an office and who is elected to serve in a
position, be it by profession, by color, by race, by
nationality. We cannot do that. The law is very, very clear
that we don't get to--
Mr. Roe. Okay. I understand that. But how do I explain it
to a veteran, you can't see a doctor? And guess what? It's not
just the VA hospital. It's other hospitals that are short too
of personnel. It's not just the VA. We're scrounging up nurses,
RNs, at our local medical center now. We're having to offer
bonuses and scholarships and other things to get these
positions filled.
So when you have these critical positions filled, and
they're spending time doing completely union work when there's
a needy veteran with a medical need out there, that is the
mission. It's not to take care of the union and not to take
care of me if I'm a provider to VA. It's to take care of the
veteran.
Mr. Cox. But I would go back to what I said earlier. To
take care of the veteran, I think you do have to take care of
the employee because you want a good work environment. And,
yes, who that person may be, the value added, that physician,
that nurse, into quality management, into innovative ideas,
working with the VA hand in hand, Dr. Shulkin has personally
asked AFGE for a physician to serve on various task forces to
help move the modern VA initiative.
Mr. Roe. We have a hospital that's right next door to our
VA in Johnson City, Tennessee. It's nonunionized. They seem to
function very well, and the complicated cases the VA can't
handle, are sent right over to the hospital that's quarter of a
mile away. The campuses abutt each other. So I don't buy that
argument, and I don't buy that we don't have enough people
working. There are critical shortages, yes, I totally agree
with that. For instance, in psychiatrists and PTSD treatment,
there are shortages.
And I wrote the letter to the President requesting that he
not freeze health care providers. I'm the one that wrote that
letter, so I get that. But I tell you, we have some real soul
searching to do in the VA right now to make it the organization
it needs to be.
I yield back, Mr. Chairman.
Mr. Hice. I thank the gentleman.
And for the record, the VBA told the House VA Committee
earlier this week that they are overstuffed at the 105 percent
level at this point.
Let's continue on. The chair recognizes Miss Rice for 5
minutes.
Miss Rice. Thank you, Mr. Chairman.
Ms. McLeod, is there any way for you to describe what
benefits, having people work on official time, what benefits
inure to people in a whistleblower situation?
Ms. McLeod. I can tell you that we have heard, you know,
inside the agency where employees who are represented by a
union went through their union to provide information about,
you know, whatever, you know, related to wait times or patient
issues or other kinds of health care concerns that they've had,
that they did use their union representative for that purpose
to give them some amount of protection to do that.
Miss Rice. And in your opinion, there's no question--I
think, Mr. Cox, you would probably agree with this as well--
hopefully, everyone on the panel would agree, that if you have
a productive workplace environment where patients are being
cared for, but also employees' rights are being protected, that
that actually will inure to the benefit of the treatment of the
patients as well?
Mr. Cox. Yes.
Miss Rice. Yes.
Ms. Barnes, so with the implementation of the new IT
system, do you believe that that will rectify a lot of the
problems that you saw in your analysis of this issue?
Ms. Barnes. It's not clear, because even with the new
system, there's another process that was being used at the time
of our review to report the agency wide data. So for us, which
is just right now, we'd have to wait and go back and do
probably another review to look at that.
Miss Rice. But that's a first step that you would
recommend, obviously you're recommending, right?
Ms. Barnes. Yeah, we did recommend that full
implementation.
Miss Rice. Okay. Well, I was happy that Chairman Meadows,
before he had to leave, stated really unequivocally and very
passionately his support for whistleblowers and whistleblower
protections, which I was very happy to hear. And just as a
comment, I just don't--I don't think this has to be an either/
or proposition that you have good care, but you can't take care
of the employee, or you take care of the employee and you have
bad care. I don't think that it has to be an either/or
proposition. I think that there is a way that all of us working
together can ensure that our veterans are given the treatment
that they deserve and that employees, not just in the VA, but
in any other organization, are respected and protected so that
they can give the kind of care that our veterans need.
So I don't think there's a lot of space between the sides
of the aisle on that issue. And so I hope that we can
transition to a conversation that recognizes the needs of
protecting both as a way of enhancing the services that our
veterans so richly deserve.
Thank you all on the panel. And I yield back, Mr. Chairman.
Mr. Hice. I thank the gentlewoman.
The chair now recognizes Mr. Jordan for 5 minutes.
Mr. Jordan. I thank the Chairman.
Mr. Kovacs, define official time. How would you define it?
Mr. Kovacs. It is paid leave given to Federal employees to
perform union activities.
Mr. Jordan. So they're not working for the taxpayer at that
time. They're working for the union?
Mr. Kovacs. Correct.
Mr. Jordan. Okay. How many people at the VA are now on
official time?
Mr. Kovacs. We do not know that.
Mr. Jordan. Most recent reports, do you have an idea?
Mr. Kovacs. The OPM report doesn't cover--I believe in
2012, there was about a million hours of official time was
used.
Mr. Jordan. Okay. So the total hours, just at the VA, was a
million, and that was in 2012?
Mr. Kovacs. Correct. And then it's also important to note,
as the GAO report states, they really don't know how much
official time is used.
Mr. Jordan. Yeah. That's what the VA tells us.
Mr. Kovacs. Correct.
Mr. Jordan. Okay. So let's go back to this official time.
You don't know the number of people on official time?
Mr. Kovacs. No.
Mr. Jordan. Do you know the number of people on partial
time?
Mr. Kovacs. No.
Mr. Jordan. Do you know if there's--has there been a trend
up in people on official time?
Mr. Kovacs. Well, I can't tell you whether there's been a
trend in individual employees, but, certainly, official time
use at the VA since 2008 to 2012 has increased greatly. It's
increased from 700,000 hours to, you know, a little over 1
million in 4 years.
Mr. Jordan. So in that 4 year from 2008 to 2012, we saw a
dramatic increase in the hours of, quote, official time. Do you
have any information across government, so not just for the VA,
do you know how many people are in an official time category
across the government?
Mr. Kovacs. Unfortunately, we don't have reliable
recordkeeping.
Mr. Jordan. What about the most recent report? Does it give
a number?
Mr. Kovacs. No.
Mr. Jordan. The number I have from OPM, I think it may be
from the same report, was 3.4 million hours of official time
across government.
Mr. Kovacs. Oh, I thought you were talking about individual
employees.
Mr. Jordan. Go back to the hours.
Mr. Kovacs. Yeah, yeah. 3.4 million hours.
Mr. Jordan. Okay. But you don't have anything on the number
of people across government in official time or partial time?
Mr. Kovacs. No. No.
Mr. Jordan. But we do know this: 3.4 million hours in 2012
across government, and a third of that 3.4 million hours was at
the VA alone?
Mr. Kovacs. Correct.
Mr. Jordan. Wow. That's amazing. That's amazing. We would
like to get the number--and this is--if I understand this
right, that's the number that the VA gave us that the GAO says
they're not real sure they can trust.
Mr. Kovacs. That is correct.
Mr. Jordan. Okay. So 3.4 million hours of folks working
official time, which is a fancy way of saying they aren't
working for the taxpayer, they're working for the union, and
almost one-third of that 3.4 million hours is folks at the VA
who aren't working for the taxpayers, and more importantly, for
the veterans, but working for the union. And we don't know if
we can trust that, which means it may be even higher. Is that
accurate?
Mr. Kovacs. Yeah, that's absolutely--
Mr. Jordan. And the trend between 2008 and 2012 was from
700,000 hours to 1 million hours in that 4-year timeframe. So
from 2012 to 2016, it's probably fair to say it went up as
well?
Mr. Kovacs [continued]. Correct.
Mr. Jordan. We don't know, but--
Mr. Kovacs [continued]. We don't know, and we don't have
reliable--
Mr. Jordan [continued]. And if the VA would tell us what it
is, we probably couldn't trust it?
Mr. Kovacs. Correct.
Mr. Jordan. Wow. No wonder the veterans aren't getting the
care they deserve, and no wonder the taxpayers are getting
ripped off.
Ms. Barnes, do you disagree with anything that we just had
in that little dialogue I had with Mr. Kovacs?
Ms. Barnes. Well, we didn't look at the '08 and '12 trends,
but certainly in terms of the reliability of the data, I agree
with that.
Mr. Jordan. Yeah. It's not real reliable, the data you're
getting from the VA, is what you're saying, right?
Ms. Barnes. That's correct.
Mr. Jordan. Okay. Mr. Chairman, this is something that's
got to change. I appreciate you all having the hearing, but,
look, this is unbelievable, unbelievable what we have here. So
let's hope we can change it and get rid of all these folks on
official time, which is--I love the way government works, a
fancy name, official time. It sounds like they're actually
working for the taxpayers, working for the veterans, when in
fact it's just the opposite.
So with that, I yield back.
Mr. Hice. Would the gentleman yield?
Mr. Jordan. I would be happy to yield to the Chairman.
Mr. Hice. I mentioned earlier, we wrote a letter and the
response of the letter to the VA, to answer the gentleman's
question, over 1,900 people at the VA involved in partial or
full-time, 100 percent official time at the VA, and that's
straight from the VA itself, and over 340 of which are 100
percent.
The gentleman yields.
The chair now recognizes Mrs. Watson Coleman for 5 minutes.
Mrs. Watson Coleman. Thank you, Mr. Chairman.
There are a lot of numbers floating around here. I'm going
to try to get some clarity on some of them, but first I ask
unanimous consent to enter into the record the statement for
the record from Randy Erwin, national president, National
Federation of Federal Employees to the Subcommittee on
Government Operations of the House Committee on Oversight and
Government Reform dated February 16.
Mr. Hice. Without objection, so ordered.
Mrs. Watson Coleman. Thank you.
I'm looking at some numbers as well. First of all, Ms.
Barnes, I appreciate the information that you've given us. What
I've gleaned from it is that we're not quantifying or
qualifying whether or not this activity that takes place where
union members are counseling, negotiating, mediating, or
whatever they're doing, employees, that's not the issue here.
The issue, as you have stated, had to do with whether or not we
are quantifying the time, accounting for the time
appropriately. Okay. We're not disparaging the VA for
information it is sharing. That's not what your report did,
that's not the subject of this.
Ms. Barnes. We took the information that the VA gave us and
did some different checks and other things that we usually do
to determine whether the information could be relied upon.
Mrs. Watson Coleman. As you always do. You don't rely upon
any unverifiable information when you're presenting your
reports to Congress.
The information I have here says that we have about 360,000
employees of the VA, and less than 350 of them are 100 percent
working in this category that we have been talking about today.
Is that fairly accurate?
Ms. McLeod. Yes, that's accurate.
Mrs. Watson Coleman. Thank you. So that represents 1/10 of
1 percent.
I also have some information that says that the amount of
time--this is 2012 so--the amount of time that VA employees
spent on activities during official time represents just 1/500
of the total number of hours of VA bargaining unit employees
working. Does that sound about correct?
Ms. McLeod. I haven't done the math, but it sounds--
Mrs. Watson Coleman. Well, my point is that it doesn't
really seem to be a big doggone deal when we think about all
the other challenges facing the VA, and our need to present all
the resources that our veterans need because they gave up for
us something, and we need to be taking care of their needs.
Now, I happen to have had experience in both the executive
branch and the legislative branch, and I've worked with unions
as a member and as a nonmember in management, but I recognize
the importance of employees having access to some resource to
deal with guidance, to deal with problems, to mitigate
problems, to deescalate potential problems, to ensure that
employees are treated fairly. And in this particular climate
where whole agencies are being gagged, where we don't know what
to expect from one day to the next from an administration that
can't figure out where its loyalties lie, being able to have
the kind of worker protections that unions provide is most
vitally, vitally important.
And so my concern would be that we ensure that there is
continuity of policy and application of standards, that there
is appropriate space available for these activities to occur,
that there is a protection of privacy for the employee when
this activity is taking place, but that we don't in any way,
shape, or form discourage or create a cloud over this right
that has already been established for employees in either the
VA or any other place in government. And if we are concerned,
and I believe it's a function that they are providing, the job
that they are doing, is very much in the best interests of both
the workforce and the employer. And if I'm going to talk about
whether or not people should do exactly what they've been paid
for, I had a question, my colleagues, as to why we don't bring
Kellyanne Conway in here and ask her was she doing what she was
paid for when she was huckstering the Ivanka Trump clothing
line.
And with that, I yield back. Thank you, Mr. Chairman.
Mr. Meadows. I thank the gentlewoman.
The chair recognizes the gentleman from Florida, Mr.
Rutherford, for 5 minutes.
Mr. Rutherford. Thank you, Mr. Chairman.
You know, having grown up in a law enforcement organization
that had civil service protection and a union, I was always
very supportive of both of those concepts. And then later when
I was elected sheriff and actually became the CEO of that
organization, I still supported civil service and union
protection for my employees. Now, it made it difficult for me
to get rid of bad employees, but I always felt like everyone
should have that due process that, if I followed it as an
administrator, I could get rid of bad employees, and so I
supported that.
Now, I am a little confused when I hear some of these
numbers thrown around about the official time. We had official
union time as well, and we had a pool of hours that could be
drawn from. So, Mr. Cox, my question to you is, under the
master agreement, I see where 25,000 hours are provided for
union activity. Is that correct?
Mr. Cox. You have the master agreement in front of you.
Now, I'm the national president, so I'm not the president of
the VA Council. I think that number is correct, but actually
Ms. McLeod would probably be the better one to give you the
exact figures on that.
Mr. Rutherford. Okay. Is that number correct, 25,000?
Ms. McLeod. I'm not sure. It sounds correct, but I'd have
to see the master agreement.
Mr. Rutherford. Okay. And then there are individual
facilities that negotiate additional official time, correct?
Ms. McLeod. That's correct.
Mr. Rutherford. And how much is that across all VA
facilities? What number of authorized pool time is there,
official time, as you call it? How much time is there totally
available? 25,000 plus the facilities, what is that number?
Ms. McLeod. So it depends on which union and which master
agreement you're speaking of. If you're talking about the AFGE
master agreement, the number of hours is the floor, and then
they can negotiate from there locally. If you're talking about
some of the more recent contracts we've negotiated, we've
developed--
Mr. Rutherford. Okay. Let me cut because my time is running
out. What is the total maximum usable official time within the
VA, under all contracts?
Ms. McLeod. I couldn't answer that.
Mr. Rutherford. Nobody knows that number. Mr. Cox, surely
you must know that number?
Mr. Cox. No, sir, I don't know that number.
Mr. Rutherford. So there's a million hours being used, and
nobody knows what the pool is? We don't know what legally is
available by contract?
Let me ask you this, Ms. McLeod. Are you allowed to deny
any--operationally, I don't know how this works within the VA,
does a union representative come to you and ask for time to
perform union activity?
Ms. McLeod. Certainly, at the local facility, someone who
wants to--
Mr. Rutherford. Okay. So they tell you what that time is
going to be utilized for, correct?
Ms. McLeod. For the most part.
Mr. Rutherford. Okay. And you can deny that time if it's
not an appropriate union activity, I presume. Is that correct?
Ms. McLeod. I'm certain they could, or if they need that
individual to perform other duties.
Mr. Rutherford. Now, can you deny them time if they go over
and above the negotiated and agreed-to-by-contract pool of
official time?
Ms. McLeod. That's correct, yes.
Mr. Rutherford. Have you ever done that?
Ms. McLeod. I have not because I don't have employees who
are in the bargaining unit who work in my office.
Mr. Rutherford. Has any facility done that? Mr. Cox, are
you aware of anyone who's been denied? It sounds to me like we
grant time and nobody's even looking at the official pool.
Mr. Cox. I am sure that people have been denied official
time. Again, the AFGE has over 200 locals in the VA. There are
other unions that represent employees in the VA.
Mr. Rutherford. Thank you.
Mr. Chairman, I know I'm over my time, but I'd like to
request from Mr. Cox, if you could, send me in writing what the
total official time pool is for VA, master agreements, and
facility agreements. What is the total amount of time?
Mr. Cox. Sir, I can tell you now I can't tell you that
time.
Mr. Rutherford. Who can?
Mr. Cox. The VA would be the one that would have the
ability.
Mr. Rutherford. Ms. McLeod, then you can provide that?
Ms. McLeod. We will provide that.
Mr. Rutherford. Thank you. I'd be glad to get it.
Mr. Hice. Would the gentleman yield?
Mr. Rutherford. Thank you, Mr. Chairman.
Mr. Hice. Would the gentleman yield?
Mr. Rutherford. Yes.
Mr. Hice. Mr. Cox, you said that there have been people
denied official time. Could you provide a list of who that
would be?
Mr. Cox. I can only tell you anecdotal information because,
yes, people are told, we can't spare you that day or it's not a
convenient time.
Mr. Hice. So you can't provide a list?
Mr. Cox. No, sir, I can't provide that list, but, yes, it
does happen, sir.
Mr. Meadows. The gentleman yields back to the gentleman
from Florida, and the gentleman from Florida's time has
expired.
So the chair recognizes himself for a series of questions,
but I'll yield to the gentleman from Ohio for a brief comment,
Mr. Wenstrup.
Mr. Wenstrup. Thank you, Mr. Chairman.
I just want to make one thing clear too in this dialogue.
We have phenomenal caregivers in the VA system. We really do. I
get very few complaints about caregivers. The system
complaints, often. I will be the first to protect
whistleblowers. They have come to me with some valuable
information and insights. And I believe in a due process for
people, and I also believe we want to create a non-hostile
environment for people to work. But I just want to make sure
that we're not unnecessarily taking away from valuable time and
assets for taking care of our veterans.
And with that, I yield back.
Mr. Meadows. I thank the gentleman. I thank each of you for
your testimony. My apologies for having to step out. Sometimes
you have a number of issues that are going on simultaneously.
Ms. McLeod, let me come to you, because what the GAO
reported is that what the VA has could only be described as
dysfunctional at best and nonexistent at the worst in terms of
being able to track this. I mean, they can't even get an
accurate count of official time. What is the VA doing to
correct that?
Ms. McLeod. The VA is implementing across the system the
VATAS, which is VA the time and attendance system. That system
has been improved so that we can appropriately track the use of
official time. It has the categories--
Mr. Meadows. So when will it be implemented?
Ms. McLeod. Fully, by July 2018.
Mr. Meadows. Okay. And why is it taking so long to do that?
I mean, I can hire a private sector to get something done in
half the time. Why is it taking so long?
Ms. McLeod. I don't know, sir. It's not a program that my
office is responsible for. I'm just not sure.
Mr. Meadows. So who is responsible for it?
Ms. McLeod. The Office of Management is the office that is
rolling that time and attendance system out.
Mr. Meadows. So how do you know for a fact that it will be
implemented by 2018? I mean, if you're not implementing it, how
do you know?
Ms. McLeod. They have assured our office that it will be
fully implemented.
Mr. Meadows. All right. So how do you figure out if
somebody is using 100 percent of the time, how do they account
for their time?
Ms. McLeod. They should be accounting for it at the local
level. I mean, it's incumbent upon local--
Mr. Meadows. They should be. I agree. I mean, we agree on
that. Are they?
Ms. McLeod. It is our belief that they are. They are
reporting up to our office every year the amount.
Mr. Meadows. Okay. So your sworn testimony, it is your
belief that they are. So why does GAO have such a hard time
figuring out the numbers? And this is not a new problem, Ms.
McLeod, is it?
Ms. McLeod. No, it's not.
Mr. Meadows. And so why are we still here talking about it?
Because Mr. Ross was here earlier, and when I was doing my
research for all of this, it looked like it was a problem in
2012 when he and Phil Gingrey was looking at this. Was it not?
Ms. McLeod. I'm not sure about that.
Mr. Meadows. In 2012, was it a problem?
Ms. McLeod. I'm not sure. I suppose it could have been. I
don't know that for sure.
Mr. Meadows. Well, who does know? You brought staff behind
you. Do they know?
Ms. McLeod. I don't know that they know. You know, I can
tell you--
Mr. Meadows. So are they on official time?
Ms. McLeod. No, sir.
Mr. Meadows. Okay. So you brought staff that can't answer
the question?
Ms. McLeod. I can tell you that there was a report that GAO
did in 2014, and in 2014 there were issues with our ability to
consistently and accurately track official time. We weren't,
however, the only, you know, government agency who experienced
those concerns. And we've been moving, I believe, in the right
direction with the implementation of VATAS.
Mr. Meadows. You're moving in the right direction over a 4-
year period, if you're acknowledging 2014, over a 4-year
period, how long does it take to figure out if somebody shows
up for work and what they're doing? I mean, in the private
sector, it takes me literally a very short period of time to do
that, and even with the volume of employees that we have in the
VA system, why can you not do that?
Ms. McLeod. They're doing it on the local level, as far as
we know. They're reporting that information--
Mr. Meadows. Here's what I would like you to do, is for
every one of your VA facilities, if they're doing it on a local
level, they need to report back to this Committee on how
they're keeping track of it. Because what I understand, they're
taking surveys. Is that correct?
Ms. McLeod. I believe that's one of the methods that
they're using.
Mr. Meadows. So we're saying fill out a survey on how much
you may have spent on official time. Do you think that that's
an accurate way, Ms. McLeod, to look at it?
Ms. McLeod. It's not the most accurate way, no.
Mr. Meadows. Mr. Cox, how would you say to do this?
Mr. Cox. I don't know that I have an answer on how to do
it, sir, because, again, the VA's computer systems and all are
very, very complicated.
Mr. Meadows. So you're saying that this is a computer
system problem?
Mr. Cox. Well, it may or may not be. I won't identify that.
The VA is a very complex organization.
Mr. Meadows. So if I get you the computer system of which
tracking time and attendance we can probably do on the
capability on an iPhone now, so are you willing to make sure
that all your covered employees accurately report time to the
VA in terms of official use?
Mr. Cox. I believe that our employees, our members, are
reporting their time. I believe the GAO study showed very
clearly that--
Mr. Meadows. That's not the question I asked, Mr. Cox. Now,
we don't have a problem with communication because we don't
need an interpreter, but the question I asked is if I give you
the ability, will you require all your members to properly
document where they're spending their time?
Mr. Cox. I think our members already do that, sir.
Mr. Meadows. 100 percent of them? Is that your sworn
testimony?
Mr. Cox. They report to their managers, they certainly do,
sir.
Mr. Meadows. I didn't say--reporting time and reporting to
a manager are two different things. So let me ask you this: Is
picketing part of official time?
Mr. Cox. No, sir, it is not.
Mr. Meadows. Okay. So you know in North Carolina that you
had a president of part of your union that was out picketing,
and she is 100 percent official time, at 11 o'clock on a
Thursday.
Mr. Cox. Did you check her record to see if she possibly
took annual leave?
Mr. Meadows. Well, she didn't have a record, you know,
because--yeah, she could have had leave.
Mr. Cox. Because frequently, our members, if they do those
type activities, take annual leave.
Mr. Meadows. Do they always do that?
Mr. Cox. They are supposed to, and we train them and we
tell them that, sir.
Mr. Meadows. All right. And so you're saying that she was
actually on annual leave when she was picketing?
Mr. Cox. I can't speak for that individual because I do not
know her time and attendance. I can tell you the instructions
AFGE gives is that those type activities--
Mr. Meadows. Do you see why we have a problem with
oversight, though, Mr. Cox?
Mr. Cox. Yes, sir, I do.
Mr. Meadows. And do you see why we need to have a proper--
because here's the thing. I will defend your right to be able
to use official time. But what I will not defend is people
being on it 100 percent of the time.
When was the last time your contract was negotiated, Mr.
Cox?
Mr. Cox. The contract with the VA was negotiated, probably
it was signed maybe about 3 or 4 years ago.
Mr. Meadows. 2011. I knew the answer. I was just waiting
for you.
Mr. Cox. 2011.
Mr. Meadows. All right. So--
Mr. Cox. Actually, sir, and if you're aware of the fact,
AFGE is a very large organization. I do not personally
negotiate all those contracts.
Mr. Meadows. But this is not your first rodeo. You've been
reelected.
Mr. Cox. No, sir, it's not my first rodeo.
Mr. Meadows. So what I'm saying is, is that if you do not
have--do you have a current contract?
Mr. Cox. I'm sure in our office that we have it.
Mr. Meadows. Are you operating under the 2011 terms?
Mr. Cox. If you're telling me that, I'm sure that we are,
sir, because I delegate those responsibilities down to councils
that operate--
Mr. Meadows. Ms. McLeod, are they operating under 2011
terms?
Ms. McLeod. Yes.
Mr. Meadows. All right. So let me ask you this, Mr. Cox.
Assuming that 100 percent of this official time is used for
negotiations, is that what part of official time would be used
for, grievances--
Mr. Cox. It would be part of it. I would say in the VA,
sir, a lot of official time is spent in quality management,
improving work processes.
Mr. Meadows. All right. Well, I was afraid you were going
to go there, Mr. Cox, and so let's take Salisbury. You've got
more people there in Salisbury on 100 percent time, and yet
we've had a backlog. So the quality of care in Salisbury pales
in comparison to Charles George VA in my district. As you know,
Charles George--I'm a huge fan of the VA. Ms. Breyfogle does a
great job. And let me tell you, all those employees at the VA,
they are doing a great job.
But the problem is, official time, they don't have anybody
on 100 percent in Salisbury who has a real problem with
backlog, has 6 people on 100 percent. Can you explain how they
are focused on quality at Salisbury with official time? There
is no correlation, Mr. Cox.
Mr. Cox. Sir, I would say part of those questions would be
more appropriately directed to the director of the Medical
Center at Salisbury.
Mr. Meadows. Well, no, you just went with your sworn
testimony, Mr. Cox.
Mr. Cox. Yes, sir.
Mr. Meadows. And you said that all this official time is to
drive quality. That's what you just told me.
Mr. Cox. We do a lot of quality work.
Mr. Meadows. How much of it?
Mr. Cox. I can't give you answers on all of that, sir.
Mr. Meadows. Why can't you give me an answer?
Mr. Cox. Because the VA is a very large organization--
Mr. Meadows. Okay. Mr. Cox, you have now come to the crux
of the matter, and so let me be blunt. The time for proper
accounting is now.
And so my charge to you, Ms. McLeod, and to you, Mr. Cox,
is what we're going to do is start to look at some direct
correlations. There is no direct correlation in terms of the
amount of official time with regards to grievances or quality.
I can't find any linear correlation there. So until you can
show me that official time can be directly correlated to the
quality of health care that our veterans deserve, we've got to
reform it. Wouldn't you agree with that, Mr. Cox, that if
they're spending time and it's not actually producing results,
we need to change it?
Mr. Cox. I think that you're trying to maybe phrase the
question to get an answer from me, Mr. Chairman, that I'm
probably not going to answer for you. I believe clearly--
Mr. Meadows. Well, you have to answer it. So I mean, you
may not answer it the way I want you to, but your sworn
testimony.
Mr. Cox. And I am giving you an answer, sir. Certainly, I
believe official time contributes to the quality of care of the
veterans at the VA.
Mr. Meadows. Okay. Here's what I'm asking you to do--
Mr. Cox. Now, if you're looking for anecdotal things--
Mr. Meadows [continued]. No, no. I'm asking you for
qualitative data. I don't care about stories.
Mr. Cox. We are glad to work with the VA, and I've done
that with the VA over and over again. I met with the chair of
the VA Committee the other day, and we will work continuously
to work to improve the care of veterans.
Mr. Meadows. All right. So here's my request of you. My
request of you is, I need a direct correlation between the
amount of official time and a direct result in terms of
training and quality. How long will it take you to get me that
kind of direct correlation from your members?
Mr. Cox. I can't give you an answer today.
Mr. Meadows. What's a reasonable time?
Mr. Cox. I will get back with you.
Mr. Meadows. Sixty days.
Mr. Cox. I will give you--I will be glad to respond and to
give you an answer, sir. It may not be the answer you want, but
I will give you an answer.
Mr. Meadows. So your response is you're willing to give me
a direct correlation between official time and the results of
that official time in 60 days?
Mr. Cox. I am certainly telling you I will give you an
answer, sir.
Mr. Meadows. That's not an answer to my question. You're
going to have to--you can pick the timeframe, but you're going
to have to give me a response to that.
Mr. Cox. And before I can give you an answer on the
timeframe, I certainly would need to consult. There's over 200
locals and probably a quarter of a million people that AFGE
represents.
Mr. Meadows. All right. So here's my charge to you, is in
60 days either you get me that or you get a very detailed
explanation on why you can't get me that.
Ms. McLeod, are you willing to do that as well?
Ms. McLeod. Yes.
Mr. Meadows. All right. Thank you both.
I'm going to go ahead and recognize Mr. O'Rourke for his
closing statement at this point.
Mr. O'Rourke. Thank you, Mr. Chairman, and thank you again
for holding this hearing.
And I got to tell you, while we may not agree on all our
conclusions about the issues at hand, I think we share a common
interest and goal in ensuring every veteran is served and
treated with the utmost dignity and respect, gets the greatest
quality of care, and the best outcomes.
I also share your frustrations. It's inexplicable that we
have gone this long without reliable data on how official time
has been measured and how it has been used. It prevents us from
being able to answer your question about determining the value
categorically of that official time.
I've also heard you and other Members from both sides say
that they are not opposed to public sector unions or the
representation by those unions of employees at the VA and that
they are not inherently opposed to official time, and I'm
encouraged by that because this GAO report shows from both VA
employees and by the management that are directing those
employees and are fulfilling our most sacred commitments that
they see value in this.
There are anecdotes pointed out, whether it's improved
scheduling for nurses, or as we mentioned earlier, including
substance abuse counseling in our mental health care treatment
regimens for veterans who desperately need that, ensuring that
our VA medical centers are operating more effectively and
efficiently, resolving disputes between management and
personnel in a more efficient manner so it doesn't drag on, it
does prevent the effective delivery of care to our veterans.
Those are all things that I would point to that I know official
time proves its value in.
I would also say that it's U.S. law, going back to the
Kennedy administration, reaffirmed in Nixon and every
successive Congress and administration since then that we find
public value in this. Why do I say this? Because some folks
today have talked about official time as though it's some
shameful act that we must hide or cover up for or apologize for
using more than a certain percentage of our time to complete.
If we agree, and this is a good question for all of us to
resolve for ourselves, for our constituents, and for the
country, if we agree official time has value, then we can move
on to the other questions about how we measure that value, how
we measure the amount of time spent on official time, and what
it does in the delivery of governmental services, in this case,
care for veterans. If we don't believe in the value of official
time, if we think it's a scam and a fraud, well then that's a
decision that we can make as well.
I happen to think, as has almost every Congress and
Government of the United States since the Kennedy
administration that there's real value in this in delivering
the care that veterans depend on from the VA. Whether it's the
National Cemeteries Administration, the Veterans Benefits
Administration, or the Veterans Health Administration. We just
need to do a better job of measuring that.
When you were out of the room, I asked Ms. McLeod to commit
to delivering on the VA time accounting system for official
time by July 2018, as is mentioned in the GAO report. She's
unable to do that on the record today, so I'm going to ask in
writing from the Secretary himself to provide that. I'll share
his answer to the Committee, because I agree with your
frustration that we're not going to be able to get the answers
to these questions without accounting for that time.
I'll also add for the record that every recommendation made
by the GAO in this excellent report was accepted by the VA, and
we're going to hold them accountable. That's our job, and we
need to do it.
Lastly, I'll end where I began the hearing today. Very
encouraged in President Trump's nomination and the Senate's
confirmation of Dr. David Shulkin as our VA Secretary. I know
that so much of what we want to see rests on his shoulders. I
know he's capable of doing this. With our assistance in
oversight, I fully believe that he will, and I look forward
with working with you to make sure that we get this done.
So thank you for holding the hearing today.
Mr. Meadows. I thank the gentleman from Texas. The chair
recognizes the Chairman of the Subcommittee, the gentleman from
Texas, Mr. Arrington.
Mr. Arrington. Thank you, Mr. Chairman, and I appreciate my
Subcommittee Ranking Member's request for a commitment on
delivering the tracking system on the designated time.
There is the law and there is what's right, and they are
not always the same. And I had a law professor at Texas Tech
that used to talk about, we all have an ain't-right meter in
everybody. And I can tell you, at least in West Texas, but I
bet 99 percent of the people in this room, when we discuss
these issues of not being able to track the time and allowing a
taxpayer-funded Federal employee to spend 100 percent of their
time on union activities, I bet your ain't-right meter is
pegged just like mine.
It's just not right, especially with the context of all the
challenges to meet the needs of our veterans. I had a lady last
night introduce me. I was surprised that she introduced me and
bragged on my time or my--my appointment, rather, on the
Committee, and she cried, and she said: Please, please make
sure that we are served well. And I just can't, in good
conscience, tell her in this case that she is.
According to the AFGE, Mr. Cox, representational work
includes, quote, ``flexible work hours, developing telework
practices, and providing workers with a voice in determining
working conditions.'' While I appreciate the need for that,
where's the voice for the veteran? Where's the voice for the
veteran in determining the conditions under which they receive
excellent service and care? Where's the voice in your process
for the taxpayer to sit at the table and say, this ain't-right
to have 100 percent of somebody's time spent on union
activities when hardworking middle class, working class folks
from West Texas are paying the freight.
Thank you for your time, thank you for your insights, and
thank you, Mr. Chairman. I yield back.
Mr. Meadows. I thank the gentleman from Texas.
I want to thank all of you.
I want to remind you, as many of the Members have said that
they've asked questions for the record that need for you to get
back to them on, and so you have 2 weeks to respond to this
particular Committee for supplying answers to those questions,
and so I would like to mention that.
Let me close by saying this: Mr. O'Rourke and I agree that
there is--the official time, certainly, is of benefit and has
its useful tool, but just like with anything, when used in
excess, it does become abusive and at the expense of something
else.
And so Mr. Cox, let me be very clear, when I'm looking at
the quality of health care for the veterans served out of
Salisbury versus the quality of care of the veterans served out
of Charles George and the amount official time that's spent in
Salisbury versus the amount of official time that's spent in my
district, there is no correlation. In fact, Charles George is
one of the best, if not the best, VA hospital in the system.
And so to suggest to this Committee that 100 percent
official time is sometimes somehow providing a result in
Salisbury, North Carolina, the superior to Asheville, North
Carolina does not correspond to your argument here today.
So here's what I'm going to do, Ms. McLeod, and you need to
make sure that we look at this. I'm looking forward to both of
your responses, but we're going to go from this Committee to
some of the facilities, and we're going to ask the hard
questions about the official use and how much training and
quality support has actually been there, because we can't
afford to get this wrong, and quite frankly, we've been getting
it wrong for far too long.
And so today is a somber moment in terms of what you want
to argue about in terms of official time, but it really comes
down to one thing. We have a responsibility to serve our
veterans, and any abuse of a system is not only not tolerated
but is going to be looked at in such a finite way that we will
correct it, and I look forward to your recommendations on how
we correct it, Mr. Cox, and how we make sure that it's fair and
equitable, because I'm sure that you're not suggesting here
that we don't serve our veterans properly. Is that correct?
Mr. Cox. I think we take good care of our veterans, sir.
Mr. Meadows. Well, I've got a lot of veterans who would
disagree with you, Mr. Cox.
And so with that, I want to thank you all for being here
for your testimony, and if there is no further before the
Subcommittees, they stand adjourned.
[Whereupon, at 2:45 p.m., the Subcommittees were
adjourned.]
A P P E N D I X
----------
Prepared Statement of Cindy Brown Barnes
UNION ACTIVITIES
VA Should Improve the Way It Tracks the Amount of Official Time Used by
Its Employees
Chairmen Arrington and Meadows, Ranking Members O'Rourke and
Connolly, and Members of the Subcommittees:
I am pleased to be here today to discuss our January 2017 report on
the use of official time and space for union representational
activities at the Department of Veterans Affairs (VA). \1\ The Federal
Service Labor-Management Relations Statute allows federal employees to
use official time to perform certain union representational activities,
such as negotiating a collective bargaining agreement and processing
grievances, in lieu of their regularly assigned work. \2\ Employees
using official time for such activities are treated as if they are in a
duty status and paid accordingly. According to a 2014 Office of
Personnel Management (OPM) report, the amount of official time used by
federal employees for union representational activities increased from
approximately 2.9 million hours to over 3.4 million from fiscal year
2008 to fiscal year 2012. \3\ For VA in particular, the OPM report
shows that unions represented over 250,000 bargaining unit employees in
fiscal year 2012, and these employees spent about 1.1 million hours
performing union representational activities on official time. \4\ VA
has negotiated master agreements with five national unions-National
Association of Government Employees, American Federation of Government
Employees, National Nurses United, National Federation of Federal
Employees, and Service Employees International Union.
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\1\ GAO, UNION ACTIVITIES: VA Could Better Track the Amount of
Official Time Used by Employees, GAO 17 105 (Washington, D.C.: Jan. 24,
2017).
\2\ Under the statute, official time is provided as a statutory
right for such activities as negotiating collective bargaining
agreements and authorized participation in proceedings before the
Federal Labor Relations Authority, but for other purposes allowed under
the statute must be negotiated between the agency and the union in an
agreed-upon amount deemed reasonable, necessary, and in the public
interest. Official time may not be used for internal union business,
such as membership drives or collecting dues. See 5 U.S.C. Sec. 7131.
Throughout this statement, we use the term ``representational
activities'' to refer to those union activities for which employees may
use official time.
\3\ Office of Personnel Management, Labor-Management Relations in
the Executive Branch (October 2014). In addition, GAO previously
reported on the extent to which 10 selected agencies used official
time, including the Department of Veterans Affairs, and the report
includes fiscal year 2013 official time data for selected agencies. See
GAO, Labor Relations Activities: Actions Needed to Improve Tracking and
Reporting of the Use and Cost of Official Time, GAO 15 9 (Washington,
D.C.: Oct. 23, 2014).
\4\ According to the 2014 OPM report, the rate of official time at
VA during fiscal year 2012 was lower compared to several other large
agencies such as the Departments of the Treasury and Transportation.
The rate of official time use indicates the number of official time
hours expended per bargaining unit employee and allows for meaningful
comparisons of official time usage among agencies.
---------------------------------------------------------------------------
My statement summarizes the findings from our January 2017 report,
which addresses (1) the extent to which VA tracks official time, (2)
what is known about the amount of designated space used for union
representational activities at selected VA facilities, and (3) the
views of VA managers and union officials on the benefits and challenges
of employees using official time.
In that report, we reviewed official time data provided to us by VA
for fiscal years 2014 and 2015, which were the most recent years for
which data were available. We assessed the reliability of the data by
reviewing relevant agency documentation about the data and the systems
that produced them and interviewing knowledgeable agency officials,
among other steps. Based on our assessment, we found the data were not
sufficiently reliable to determine the amount of official time used by
VA employees and the purposes for which it was used. As such, data we
present in our report in this regard are for illustrative purposes
only. We also selected a nongeneralizable sample of five VA facilities
in four states based on the number of bargaining unit employees at the
facilities and to ensure representation from the three VA
administrations, as well as from the different unions representing
employees at VA. \5\ We reviewed collective bargaining agreements (CBA)
at the national level and local agreements for the selected facilities;
VA policies and guidance; and relevant federal laws, regulations, and
government standards for internal controls. \6\ We also analyzed VA
information on designated union space, which we determined was
sufficiently reliable for our purposes. In addition, at each of the
five selected facilities, we interviewed officials about how official
time is recorded at the facility level, and we held group interviews
with five groups of VA managers and five groups of union officials to
obtain their views on the benefits and challenges of official time. \7\
We also interviewed officials from five unions at the national level
and officials at VA and OPM. A more detailed explanation of our
methodology is available in our full report. The work upon which this
statement is based was conducted in accordance with generally accepted
government auditing standards.
---------------------------------------------------------------------------
\5\ VA is organized into three administrations-the National
Cemetery Administration, the Veterans Benefits Administration, and the
Veterans Health Administration.
\6\ See GAO, Standards for Internal Control in the Federal
Government, GAO 14 704G (Washington, D.C.: September 2014).
\7\ At most facilities, we interviewed more than one group of local
union officials. For purposes of discussing views on the benefits and
challenges of employees using official time in our report, we
considered the responses across all of the groups of local union
officials we interviewed at each facility and refer to the groups
collectively as one group for each facility.
VA Has No Standardized Way for Facilities to Record and Calculate
Official Time, which Hampers Its Ability to Accurately Track the
---------------------------------------------------------------------------
Amount of Official Time Used Agency-Wide
There is no standardized way for VA facilities to record the amount
of official time employees use for representational activities because
there are currently two time and attendance systems being used across
the agency that capture this information differently. In 2013, VA began
implementing its new Veterans Affairs Time and Attendance System
(VATAS) at some facilities to replace its older system, the Enhanced
Time and Attendance (ETA) System. VA expects to complete its rollout of
VATAS in July 2018, and as of September 2016, approximately 50 percent
of VA facilities and about one-third of employees (120,000) had
transitioned to VATAS. For the five facilities we selected, three had
transitioned to VATAS, and two were still using ETA at the time of our
visits. \8\ While VATAS provides specific codes for timekeepers to
record time for various union representational activities, according to
VA officials, ETA lacks such codes, and timekeepers can record the use
of official time for union representational activities under the
remarks section of employees' time and attendance records. VA officials
further said recording time this way does not always make clear the
purpose for which official time is being used. Beyond these
inconsistencies in recording official time in VATAS and ETA, we found
that three of the selected facilities did not record official time in
either of these systems. Two of the facilities under VATAS maintained
records on the use of official time outside the system, and the one
facility under ETA did not document the use of official time at all.
The inconsistent recording of information raises questions about VA's
ability to monitor the use of official time.
---------------------------------------------------------------------------
\8\ We conducted our interviews with selected facilities from May
2016 to July 2016. One of the two facilities using ETA was scheduled to
implement VATAS soon after the time of our interviews.
---------------------------------------------------------------------------
VATAS could help standardize the way individual facilities record
information on official time and improve VA's ability to monitor its
use; however, we also found VA has not provided consistent training to
employees on how to record official time in the new system. The lack of
consistent training on how to record official time in VATAS is due in
part to the fact that VATAS is being implemented in phases and training
is being updated throughout the course of implementation. For instance,
timekeepers and other officials from the three selected facilities that
had implemented VATAS said that recording official time was not covered
during their VATAS training, and these facilities were not using the
codes in VATAS to record official time because they were not aware of
them. As a result, these facilities continued to use different
approaches to record official time and documented different
information. According to federal internal control standards,
management should communicate quality information that enables
personnel to perform key roles, and it should provide appropriate
training to personnel for carrying out their responsibilities. \9\
---------------------------------------------------------------------------
\9\ GAO 14 704G.
---------------------------------------------------------------------------
In 2016, VA took several steps to provide better guidance to
facilities on how to record official time in VATAS, including providing
face-to-face training and making the information available on the VA
network. We recommended in our January 2017 report that the Secretary
of Veterans Affairs direct the Assistant Secretary for Human Resources
and Administration to increase efforts to ensure timekeepers at all
facilities receive training and consistent guidance on recording
official time in VATAS. VA concurred and said it has revised its policy
to include specific directions to facility human resource offices to
begin recording official time in VATAS once it has been implemented at
the facility. VA set a target completion date of April 2017 in response
to our recommendation.
To provide agency-wide official time data to OPM, which reports on
the use of official time for representational activities government-
wide, VA's Office of Labor-Management Relations (LMR) annually collects
and compiles data from individual facilities and shares the aggregated
data with OPM. VA's Office of LMR uses its LMR Official Time Tracking
System to obtain information from individual facilities on the amount
of official time used by employees. \10\ The LMR system is separate and
distinct from VA's two time and attendance systems and provides the
Office of LMR with a centralized way to collect official time data from
individual facilities, among other purposes. To collect official time
data, each year the Office of LMR sends an email to facilities with a
link to access the LMR system. A management representative at each
facility then manually enters the information into the LMR system. \11\
---------------------------------------------------------------------------
\10\ According to VA officials, the LMR Official Time Tracking
System is also used to track agency-wide labor-management relations
activities more broadly at the national level, including the
development of related directives and policies.
\11\ Facilities may submit more than one official time entry in the
LMR Official Time Tracking System if multiple unions represent
employees at the facility.
---------------------------------------------------------------------------
The actual amount of official time used by employees across VA
cannot be easily determined because VA offers facilities various
options for calculating and reporting official time data in the LMR
system. Federal internal control standards prescribe that management
design control activities so that events are completely and accurately
recorded. \12\ VA 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 when entering information into the LMR
system. These different methods of calculating official time result in
inconsistent information. Without reliable information from facilities
on official time, VA management cannot monitor the use of official time
and manage VA's resources effectively. We recommended that prior to the
agency-wide implementation of VATAS, VA standardize the methods used by
facilities for determining the amount of official time used by
encouraging facilities to rely on time and attendance records. VA
concurred and said its Office of Human Resources and Administration
will develop a memo directing facilities to rely on time and attendance
records when calculating the amount of official time used by employees
at the facility level and set a target completion date of April 2017.
---------------------------------------------------------------------------
\12\ GAO 14 704G.
---------------------------------------------------------------------------
Once implemented agency-wide, VATAS could provide VA with an
alternative to collecting official time data through its LMR system. An
official from VA's Financial Services Center (FSC) stated that FSC
currently has the capability to generate reports in VATAS on the amount
of official time used at individual facilities. The official added that
once all facilities are using VATAS, FSC could generate one report with
official time data, thereby eliminating the need for using the LMR
system. However, an official from VA's Office of LMR was not aware of
FSC's ability to produce such reports and said that the Office of LMR
planned to continue using the LMR system to collect data on official
time. If VA does not obtain more consistent data on the amount of
official time used by employees, it will not be able to accurately
track the amount of official time used by employees to ensure public
resources are being used appropriately. In preparation for the full
implementation of VATAS, we recommended that VA take steps to
transition from using the LMR system to VATAS to collect and compile
information on the amount of official time used agency-wide. VA
concurred and said the Office of LMR will coordinate with FSC to
collect and compile data on official time and set a target completion
date of December 2018.
Designated Space for Union Representational Activities Comprised Less
Than 1 Percent of the Overall Space at Selected Facilities
We found that the amount of designated space for union
representational activities at selected facilities varied, but in all
cases comprised less than 1 percent of the overall space available.
Designated space for representational activities at the five selected
facilities consisted primarily of office space, which was occupied by
one or more union officials. \13\ In addition to office space,
designated space for union activities included conference rooms and
storage rooms at some of the selected facilities. Further, VA provided
unions at all five selected facilities with basic office furniture and
equipment, such as desks, chairs, filing cabinets, computers, printers,
and fax machines. In some cases, union officials said they purchased
additional office equipment using union funds.
---------------------------------------------------------------------------
\13\ At a selected facility with two local unions, one of the
unions did not have designated space. Rather, that union's president
had her own office where she performed both union representational
activities and non-union job duties. This union president was scheduled
to spend 100 percent of her worktime on non-union job duties and
requested approval from her supervisor to use official time on a case-
by-case basis.
---------------------------------------------------------------------------
Union officials from three of five groups we interviewed said that
limited space for representational activities was a challenge.
Specifically, union officials from those three groups said there was
not always sufficient privacy to ensure confidentiality for employees,
especially in cases where designated space for representational
activities was shared by multiple union officials. A VA official from
the Office of LMR said that, in general, certain VA facilities may have
space constraints depending on where they are located, the types of
services provided, and the number of veterans served. VA does not track
information on the costs associated with unions' use of designated
space across the agency, and we were not able to obtain consistent
information on costs from selected facilities.
VA Managers and Union Officials at Selected Facilities Cited Similar
Benefits and Different Challenges Associated with the Use of
Official Time
VA managers and union officials from groups we interviewed at
selected facilities cited similar benefits of employees' use of
official time for representational activities. Specifically, managers
and union officials from most groups we interviewed said that
employees' use of official time improved decision making and helped
them resolve problems at their respective VA facilities, and some
believed it improved relationships between management and labor (see
fig. 1). For example, the use of official time may help prevent
problems from evolving into formal actions, such as grievances against
management or disciplinary actions against employees. In addition,
according to union officials at the national and local levels,
employees' use of official time also facilitates the whistleblower
process at VA by providing an avenue for employees to report issues or
concerns.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Managers and union officials across selected facilities identified
different challenges associated with employees' use of official time.
Specifically, managers from all five groups we interviewed cited
staffing and scheduling challenges associated with employees' use of
official time. Managers said it is sometimes difficult to accommodate
such employees' use of official time because it may detract from these
employees' non-union responsibilities. Union officials from three of
five groups we interviewed said they experienced challenges with
limited flexibility in terms of when official time may be used, and
union officials from four groups said they used varying amounts of
personal time to conduct union representational activities.
Chairmen Arrington and Meadows, Ranking Members O'Rourke and
Connolly, and Members of the Subcommittees, this concludes my prepared
remarks. I would be happy to answer any questions you may have.
GAO Contact and Staff Acknowledgments
For further information regarding this testimony, please contact
Cindy Brown Barnes at (202) 512-7215 or [email protected]. Contact
points for our Offices of Congressional Relations and Public Affairs
may be found on the last page of this statement. Individuals who made
key contributions to this testimony include Mary Crenshaw (Assistant
Director), David Chrisinger, Sheila McCoy, Meredith Moore, Jean
McSween, Mimi Nguyen, James Rebbe, Catherine Roark, and Almeta Spencer.
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Prepared Statement of Kimberly Perkins Mcleod
Good Morning, Chairmen Arrington and Meadows, Ranking Members
O'Rourke and Connolly, and distinguished members of the subcommittees.
Thank you for the opportunity to discuss the progress that the
Department of Veterans Affairs (VA) is making towards accounting for
``official time'' to provide the best possible service to our Nation's
Veterans.
For context purposes, the Federal Service Labor-Management
Relations Statute (Statute) at 5 United States Code Sec. 7131, governs
how executive branch agencies treat official time. The Statute provides
for official time for union representatives to perform certain union
activities. Official time is duty time during which a bargaining-unit
employee (an employee represented by a union) may perform
representational activities in lieu of the employee's management-
assigned work, without loss of pay or charge to leave. The Statute
provides official time to negotiate collective bargaining agreements
and to participate in proceedings before the Federal Labor Relations
Authority. In addition, the Statute requires management and its unions
to negotiate amounts of official time which the parties agree are
``reasonable, necessary, and in the public interest.'' Official time
negotiations are mandatory, apply to most Federal agencies, and include
provisions relating to the amount, allocation, scheduling, and location
of official time.
VA has negotiated varying amounts of official time in both national
agreements and local agreements. Many VA facilities have local official
time agreements and practices specific to their location. Official time
arrangements are frequently distinctively local and reflect the
relationship and history between local management and local union
officials. It should be noted that while management has the right to
negotiate the allocation and use of official time by union
representatives, in ordinary circumstances, the Statute does not give
management the right to select which employees serve as union
representatives.
Periodically, the Office of Personnel Management (OPM) formally
requests the official time data from every executive department and
agency across the Federal Government. It is each agency's
responsibility to report official time hours used by employees who
perform representational functions. In the past, VA has produced an
annual report of agency-wide official time use and submitted the report
to OPM. As you are aware, the recent U.S. Government Accountability
Office (GAO) report, dated February 3, 2017, regarding VA official time
use, describes how VA has historically not implemented a uniform and
standardized official time reporting system. Local VA facilities have
reported their official time use to the VA Central Office in various
ways, including written records, estimates, samples, surveys, or
combinations of these methods.
The GAO report notes that VA is now using two timekeeping systems.
The legacy system, the Enhanced Time and Attendance System (ETA),
remains in effect at some facilities; other facilities have implemented
VA's new time and attendance system, commonly referred to as the VA
Time and Attendance System (VATAS). ETA, the legacy system, does not
have codes for employees and supervisors to record the local use of
official time. VATAS, however, does have that capability.
As of September 2016, approximately 50 percent of VA facilities and
about one-third of VA employees (120,000) had transitioned to VATAS,
with its official time-recording capabilities. The full VATAS multi-
facility rollout is scheduled to be completed by July 2018.
The GAO report includes three recommendations to improve VA's
ability to accurately track employees' use of official time. VA concurs
with GAO's recommendations. In response to GAO's first recommendation,
VA has updated and expanded timekeeper training on the collection and
reporting of official time in its final ongoing VATAS nationwide roll
out. Training now includes consistent guidance on the proper method of
inputting official time codes into VATAS. The GAO report notes that,
even in facilities already using VATAS, some timekeepers are still not
properly using VATAS codes to record official time use. VA is offering
additional training to those facilities where VATAS has been
implemented, but where particularized training on official time entries
was not separately addressed. VA is also preparing an additional
training video concerning official time, to ensure that all timekeepers
and supervisors understand the importance of maintaining accurate and
complete official time records. In addition, VA is discussing the
proper method to record official time during its monthly ``VATAS
Connections'' call with payroll offices. VA's Office of Labor
Management Relations will also be reinforcing the importance of
complete and accurate recordkeeping during its monthly call to local
human resources professionals nationwide.
In response to GAO's second recommendation, VA is providing updated
written instructions to all of its facilities, seeking to establish and
enforce a standardized approach to recording and reporting official
time across VA. VA also intends to initiate bargaining with its
national unions to come to an agreement with them on a standard
approach to have union officials request, record, and report their use
of official time in VATAS.
In response to GAO's third recommendation, VA's Office of Human
Resources and Administration is preparing updated policy guidance to
all VA facilities concerning the recording of local official time. For
those facilities where VATAS is already operational, timekeepers and
supervisors are instructed to use VATAS to record the use of official
time. The four reporting categories available on VATAS will mirror the
categories OPM uses in its government-wide official time reporting.
Each category will include a description of the activities that fall
within that category using the identical descriptions provided by OPM-
ensuring a standard VA future recording and reporting approach. As VA
transitions to a single, upgraded timekeeping system, official time use
will become more transparent and official time reporting will be
substantially more accurate. Recording and compiling official time use
in VATAS will result in a number of positive outcomes. VA's
standardized approach will guarantee accurate, timely, and reliable
accounting of official time use across the Agency. Relying on VATAS, VA
will be able to quickly compile and report official time data to OPM,
Congress, and to other government agencies; and will have a
substantially enhanced ability to monitor use of official time at
individual VA facilities.
In summary, VA is incorporating GAO's recommendations in its
operations and the result will be improved, standardized,
comprehensive, and reliable accounting of official time use at VA. VA
estimates that it will fully incorporate GAO's first two
recommendations by April 2017. VA hopes to complete the implementation
of GAO's third recommendation by July 2018. The Department has taken
the opportunity to develop a strategy to move forward and meet with our
labor partners in order to discuss ways to address how we collect and
report official time, as well as how we ensure that official time is
used to enhance the labor management relationship at the local and
national level. By implementing a robust official time system using
VATAS, the Department and its labor partners can ensure that official
time is properly managed, recorded and analyzed in order to support
VA's mission.
This concludes my testimony, and I am happy to answer your
questions.
Prepared Statement of J. David Cox, Sr.
Chairman Meadows, Chairman Arrington, Ranking Member O'Rourke and
Ranking Member Connolly: My name is J. David Cox, and I am the National
President of the American Federation of Government Employees, AFL-CIO
(AFGE). On behalf of the 700,000 federal and District of Columbia
employees AFGE represents, I thank you for inviting me to testify today
on the use of official time for union activities at the Department of
Veterans Affairs.
Background
On January 17, 1962, President John F. Kennedy signed Executive
Order 10988, Employee-Management Cooperation in the Federal Service,
which gave federal employees the right to unionize and bargain
collectively. Seven years later, on October 29, 1969, President Richard
Nixon issued Executive Order 11491, which reaffirmed and expanded those
rights.
In 1978, Congress enacted the Civil Service Reform Act (CSRA) of
1978 which states clearly the public interest in labor unions and
collective bargaining in the federal sector. The language of the law
includes the following:
The Congress finds that-
(1) experience in both private and public employment indicates that
the statutory protection of the right of employees to organize, bargain
collectively, and participate through labor organizations of their own
choosing in decisions which affect them-
(A) safeguards the public interest,
(B) contributes to the effective conduct of public business, and
(C) facilitates and encourages the amicable settlements of disputes
between employees and their employers involving conditions of
employment; and
(2) the public interest demands the highest standards of employee
performance and the continued development and implementation of modern
and progressive work practices to facilitate and improve employee
performance and the efficient accomplishment of the operations of the
Government.
Therefore, labor organizations and collective bargaining in the
civil service are in the public interest. \1\
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\1\ https://www.law.cornell.edu/uscode/text/5/7101
---------------------------------------------------------------------------
The CSRA went on to require federal employee unions to provide a
wide range of representational services for all employees in their
collective bargaining units, including those who choose not to join the
union, not to pay dues. Under this ``open shop'' arrangement, federal
employee unions are also forbidden from collecting any fair share
payments or fees from non members for the services which the union has
a legal obligation to provide.
In order to fulfill unions' legal obligation to provide the same
services to those who pay as well as those who choose not to pay, the
Executive Orders and the CSRA instructs agencies to bargain with
federal employee unions to determine a reasonable amount of ``official
time'' to carry out these duties. These legal provisions have produced
an efficient and effective mechanism for the fulfillment of the duty of
fair representation. Federal employees agree to serve as volunteer
employee representatives, and agencies allow them to use a reasonable
amount of official time to engage in representational activities while
on duty status.
The representation activities that these elected volunteers may
engage in while in duty status are limited, and include:
Developing systems to allow workers to perform their
duties from alternative sites, thus increasing the effectiveness and
efficiency of government;
Participating in management-initiated efforts to improve
work processes; and
Creating fair promotion procedures that require that
personnel selections be based on merit, in order to allow employees to
advance their careers;
Establishing flexible work hours that enhance agencies'
service to the public while allowing employees some control over their
schedules;
Setting procedures that protect employees from on-the-job
hazards;
Enforcing protections from unlawful discrimination in
employment;
Providing affected workers with a voice in determining
their working conditions.
I want to emphasize, Messrs. Chairmen, that the list above, while
not exhaustive, does not include union organizing, the union's
political activities, or the conduct of internal union business, all of
which are prohibited by law to be undertaken during hours designated as
official time.
The CSRA provides that the amount of official time deemed
reasonable
for negotiations and other representational responsibilities that
may be used is limited to that which the agency and its unions agree is
``reasonable, necessary, and in the public interest''. \2\ The actual
amount of time permitted to any employee representative is determined
in the course of formal negotiations that follow established legal
regulations. The notion that agencies have ever provided any kind of
open-ended quantity of official time is erroneous. There is always a
cap or maximum amount authorized by the agency and set forth in the
collective bargaining agreement. Under AFGE's current collective
bargaining agreement with the Department of Veterans' Affairs, local
union officials are allocated official time under a formula of no more
than 4.25 hours per bargaining unit employee per calendar year times
the number of employees the union is legally required to represent at
each facility. This number represents an annual maximum.
---------------------------------------------------------------------------
\2\ https://www.law.cornell.edu/uscode/text/5/7131
---------------------------------------------------------------------------
To protect the taxpayer and the independence and integrity of the
union, the statute clearly states that all non-representational
activities of the union must be performed while in a non-duty status.
That is, the same individual who has volunteered and been elected by
his or her co-workers to provide representational services cannot do
any of the following while on ``official time'' or while in duty
status:
solicitation of membership;
internal union meetings;
elections of officers; and
partisan political activities.
I want to emphasize, Mr. Chairman, that official time may not be
used for the above activities. I can assure you that AFGE's elected
representatives receive extensive training and guidance on what
activities are permitted and what activities are forbidden on official
time. We take very seriously both our legal obligation to represent all
members of our bargaining units, and the legal prohibitions against
engaging in non-representational activities. AFGE representatives know
the difference and act accordingly.
Finally, federal employees are permitted to file appeals of
personnel actions outside the scope of the union's negotiated
collective bargaining agreement. Examples include appeals through an
agency's internal administrative grievance system or Equal Employment
Opportunity programs, appeals to the Merit Systems Protection Board
(MSPB) for adverse personnel actions such as suspensions, removals, and
reductions-in-force, appeals to the Department of Labor (DOL) and/or
the MSPB for violations of veterans' preference rules, appeals to DOL
for workers' compensation, and appeals to
OPM for violations of the Fair Labor Standards Act. These statutes
provide a reasonable amount of time to employees and their
representatives to file such appeals.
Official Time: A Compromise that Works
The provision of a reasonable amount of official time for
representational duties in the federal sector reflected a choice from
among the variety of arrangements that existed in the private sector
labor-management relations and collective bargaining agreements. The
alternative to ``official time'' in private sector collective
bargaining agreements has been to charge employees who exercise the
right not to pay dues to the union a ``fair share fee'' to cover the
costs a union bears in enforcing its contract with an employer. In
these cases, the union uses the fees to hire ``business agents'' to
preform representational duties. There may still be elected shop
stewards who convey information to business agents, but the actual
costs of representation are born by the union and paid for by both dues
and fair share fees.
GAO's Report: Official Time Also Makes the Government More Efficient,
Effective, and Gives Value to the Taxpayer
At the Department of Veterans' Affairs (DVA), employee
representatives are able to work together with agency managers to use
their time, talent, and resources to improve the delivery of services
to veterans. The January 2017 Government Accountability Office (GAO)
report we are here to discuss today (Union Activities: VA Could Better
Track the Amount of Official Time Used by Employees) found time and
again that elected employee representatives who worked with VA managers
on workplace and patient issues brought value because of the deep
commitment to veterans' care that AFGE shares with DVA. ``Managers and
union officials from most groups we interviewed said that employees'
use of official time improved decision making and helped them resolve
problems at their respective VA facilities, and some believed it
improved relationships between management and labor.'' \3\
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The GAO report found that in two out of three facilities
investigated, 80% of the groups of managers interviewed agreed that
employee representatives improved decision making and helped resolve
problems, and 60% of the manager groups agreed that the union helped
improve relationships. \4\ Our members' only goal is to deliver
excellent care and services to our nation's veterans. Excellent, highly
satisfied and dedicated employees are the VA's most important resource
and reasonable amounts of official time allows employees to participate
directly in agency decisions that affect them. And the data in the GAO
report confirm this to be true.
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It must be emphasized that nowhere in the GAO report is there any
suggestion or allegation of union wrongdoing with regard to the use of
official time in DVA. GAO found no union failure to report information
and no instance where information reported was inaccurate. Rather the
GAO found simply that DVA failed to collect the data properly.
Private industry has known for years that a healthy and respectful
relationship between labor and management improves productivity,
innovation, quality, and customer service and is often the key to
survival in a competitive market. It is not uncommon for healthcare
companies in the private sector to bargain with unions over paid time
for union officials to be released from duty to work on quality
improvement, safety and other workplace matters. Kaiser Permanente,
Johns Hopkins Hospital, the Mayo Clinic, the University of Chicago
Hospital, New York Presbyterian, Cedars-Sinai--the crown jewels of
America's private healthcare system--all have unionized employees.
No effort to improve governmental performance--whether it's called
reinvention, restructuring, or reorganizing--will thrive in the long
run if labor and management have an adversarial relationship or are
precluded from engaging in a mutually respectful exchange of ideas. The
reasonable use of official time provides the means, not only in DVA but
also throughout the federal government by which employees and their
elected representatives participate in the improvement of DVA services.
In these times, it is essential for management and labor to develop and
maintain a stable and productive working relationship. We must continue
to allow employees to choose their representatives who will interact
and work with DVA management. This is crucial if we are to continue to
improve the delivery of DVA services to veterans.
Employee representatives and managers have used official time
through labor-management partnerships to transform the labor management
relationship from an adversarial stand-off into a robust alliance. And
that just makes sense. If workers and managers are communicating
effectively, workplace problems that would otherwise escalate into
costly litigation can be dealt with promptly and more informally. And
that is exactly what happens in DVA. Absent the union's ability to
resolve a misunderstanding or dispute quickly at the local level,
managers and employees have few options. If an employee leaves or is
terminated because of a misunderstanding that could easily have been
handled through a union dispute resolution process, DVA bears the costs
of recruitment and training of a replacement, a costly, disruptive and
unnecessary outcome that a good labor-management relationship can and
does prevent on a routine basis.
Routinely, we see examples of official time under labor-management
partnerships or forums used to bring closure to workplace disputes
between the DVA and an employee or group of employees. GAO's findings
support this-it found that VA managers and union officials confirm that
including the union pre-decisionally in the process of considering
management decisions improved the decision-making process. The GAO
study also cited that the union and management worked together on nurse
scheduling at one facility with the goal of improving staff retention
and morale. Staff retention and increased morale among VA employees is
critical to being able to hire and retain outstanding staff to improve
quality treatment of veterans. It is the inclusion of front-line
employees through their elected employee representatives that make
these kind of changes not only more frequent, but also more successful
and more likely to result in better service to our veterans.
Healthier Labor Management Relations in the Federal Government Also
Produce Cost Savings in Reduced Administrative Expenses
Employee representatives use official time for joint labor-
management activities that address operational, mission-enabling issues
that improve VA's service to veterans. Patient safety initiatives are a
prime example of this type of work, and the VHA's prominence and
success in this area is a source of pride for AFGE. Official time is
allowed for activities such as designing and delivering joint training
of employees on work-related subjects; and introduction of new programs
and work methods that are initiated by the agency or by the union. As
examples, such changes may be technical training of health care
providers or jointly inspecting the workplace for hazards;
participating in VA-wide improvement initiatives like MyVA which
examined a multitude of ways to improve veterans' care, veterans
benefit processing and other VA system improvements.
Employee representatives use official time for routine and unusual
problem-solving of emergent and chronic workplace issues. For example,
when they participate in VA health and safety programs which emphasize
the importance of effective safety and health management systems in the
prevention and control of workplace injuries and patient safety,
representatives have been granted official time by their managers.
Another example comes from the important area of patient safety. The
reasonable use of official time also allows employee representatives to
alert management to issues reported to the them without disclosing the
identity of the employee who made the disclosure, issues that may be a
matter of life and death to patients. Employee representatives have
also used allotted official time to ensure that employees are hired and
promoted fairly. This work leads to better recruitment and retention of
desperately needed front- line health care to better care for veterans.
Further Findings in the GAO Report
The GAO Report found that the use of official time by employee
representatives was valuable to making VA a great place to work and
improving the delivery of care to veterans. In particular, the GAO
report found that the use of official time by elected employee
representatives: improved agency decision making, improved conflict
resolution and led to better, less adversarial outcomes. The use of
official time improved the relationship between VA management and
employees. While some challenges in staffing were identified in GAO's
report, it is important to note that release from duty is always
coordinated and agreed to by VA management when employee
representatives participate in workplace matters. Improved employee
engagement is a goal of the federal government overall and also of the
VA in particular. Scaling back the involvement of employee
representatives under the guise of alleged ``government efficiency''
would be a mistake, a short-sighted policy which would deprive the
agency of the valuable contributions front line employees make to the
VA through the use of official time.
The challenges and issues cited by GAO are solely related to VA's
administrative decisions about how to track official time. AFGE
supports the accurate collection of data. It would be inappropriate,
however, to use any failure on the part of the VA in the implementation
of its internal management systems as a basis to disturb existing law
and practices with regard to official time. As I stated previously, the
GAO report found that the use of official time was value added to the
agency and any bookkeeping failure on the part of DVA management would
not be a legitimate basis on which to undermine the valuable
contributions of employee representatives in the workplace.
The GAO report confirms that official time is a valuable tool for
facilitating employee input into the shared goal of improving the VA.
Despite the numerous investigations undertaken by Congress, GAO, VA,
and VA's OIG and other entities, the use of negotiated time for
employee representatives has never been found to be connected in any
way to veteran waitlists, slow processing of veteran claims or any of
the challenges identified over the years in VA. Instead, the facts show
that official time is valued by both VA management and employees for
problem-solving and improving the delivery of care and services to
veterans. Participation of employees' elected representatives in
improving the VA and adding value to VA and the whole federal
government needs to continue so we can all accomplish the goal of
providing the best services. We urge Congress and the Administration
not to undermine a system that has a proven track record of success in
improving government. Inclusion of employees' perspectives in efforts
to make the VA a better workplace and a better healthcare system have
proven their worth, and I ask that the committees present today
recognize the importance of permitting this important work to continue.
Opposition to the use of Official Time
Those who would like there to be no union representation in the
Department of Veterans Affairs or in any other workplace, public or
private, have tried to suggest that VA's understaffing problems could
be eliminated if only there were no one involved in representation of
bargaining unit employees. Of course, the numbers make this assertion
ridiculous. It is estimated that the VA has in excess of 45,000
unfilled medical positions nationwide. Even if we assume that GAO's
concerns about VA's recordkeeping with respect to the use of official
time are valid and VA has perhaps understated the number of hours used
annually, the numbers reported for 2015 are small: approximately 2.7
hours annually per bargaining unit employee. \5\ The number of hours
reported to have been spent on official time throughout DVA, including
the Veterans Health Administration (VHA), the Veterans Benefits
Administration (VBA), and the National Cemetery Administration (NCA)
was equivalent to no more than 508 FTE for bargaining units of nearly
300,000 in an agency with 350,000 employees.
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To attempt to place the blame for VA understaffing on this small
element of the Department's operations is ludicrous. It would be just
as appropriate to blame it on the number of people who work in the
Office of Resolution Management (288), or the number in the General
Counsel's Office (723), or the Office of the Deputy Assistant Secretary
for Finance (869) or even the 537 who work in the Secretary's Office.
\6\ If all of the people in these positions were transferred to the
bedside of veterans, one could say that there were more people
providing direct patient care. But the Department is an enterprise with
many functional needs, and each of these offices perform necessary
functions. No one is suggesting that the work of these offices should
cease in order that incumbents be transferred to fill openings
elsewhere. The function performed by employee representatives is just
as vital and important as any other Department function focused on
support of veterans. To suggest otherwise is nothing more than a
transparent effort to deny employees the union representation for which
they have voted. And more important, it does a disservice to both the
veterans who work at the Department and the veterans who rely on DVA's
employees for the services they have earned.
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Conclusion
The GAO report did recommend that the DVA improve its recordkeeping
with regard to employee representatives' use of the reasonable amounts
of official time permitted to them. The report identified no union
failure or unwillingness to report this information to DVA management.
And in no way did the report suggest that the use of official time
presents problems for the Department. Instead, GAO confirms that both
union and management representatives report positive outcomes as a
result of allowing for time for union representation. Better decisions,
better resolution of the inevitable problems that arise in a workplace,
and improved relationships were all identified as benefits of the work
of employee representatives. And these benefits all accrue to the
veterans we hold in such high esteem, the veterans to whose care we
have devoted our careers.
I ask the members of the committees to bear in mind that fully one
third of the Department's workforce are veterans themselves. They have
fought bravely for the freedoms we all cherish, and that includes the
freedom to form, join and be represented by a union. Any effort to
undermine these veterans' union rights should be vehemently opposed.
The right to form and join a union is surely undermined if that union
is prevented from exercising its representational duties because
representation is the very purpose of the union. I thank you for the
opportunity to testify today, and will be happy to answer any questions
you may have.
Prepared Statement of William Lawrence Kovacs III
Chairman Meadows, Chairman Arrington, Ranking Member Connolly,
Ranking Member O'Rourke, and members of the committees. Thank you for
holding this hearing and providing me the opportunity to discuss the
issue of official time in the federal workforce. My name is William
Kovacs III, and I am a labor policy analyst at the Competitive
Enterprise Institute (CEI). CEI is a nonprofit, nonpartisan public
policy organization that focuses on regulatory issues from a free
market and limited government perspective.
Summary
When Congress enacted the Civil Service Reform Act of 1978 (CSRA),
it determined (in the findings and statement of purpose) that labor
unions and collective bargaining in the federal government
``safeguard[] the public interest,''i advance ``the
effective conduct of public business,''ii and ``improve
employee performance and the efficient accomplishment of the operations
of the Government.''iii
It is debatable whether permitting collective bargaining in the
federal government achieves these objectives.iv Yet, one
component of the collective bargaining system blatantly undoubtedly
contradicts the CSRA's findings.
That provision is known as union official time, which grants
federal employees paid time off from their government duties to perform
union work.v Official time subsidizes federal labor unions
to file grievances, negotiate contracts, and even lobby Congress.
Unfortunately, a general lack of transparency surrounding the practice
makes it impossible to know what specific activities are performed on
official time or what its costs are.
Despite official time taking federal employees away from the jobs
they were hired to do, the federal government imprudently views
official time as a crucial cog in its carefully crafted collective
bargaining regime. The fact is that official time is simply a subsidy,
costing taxpayers at least $157 million in FY 2012.vi
Hundreds of federal employees spend 100 percent of their time
performing union activity instead of any public service.vii
It is impossible for a federal employee who never conducts any public
service to promote the public interest, contribute to effective
performance of public services, or achieve efficient government
operations. Activity performed on official time benefits only labor
unions and their members, not the public.
Union activity conducted using official time should be financed
with union dues instead of tax dollars. Federal employee unions contend
that official time is necessary because the CSRA requires a duty of
fair representation, which requires unions to represent both dues-
paying members and non-members, and prohibits unions from forcing non-
members to pay dues. A better solution than subsidizing federal unions
is to release them from the duty to represent non-members and free
those employees from working under a union contract.
Union official time is an unwise use of limited tax dollars and
serves the private interests of unions. The public does not directly
benefit from the use of official time. Congress should eliminate the
use of official time. In absence of abolishing official time, greater
safeguards against its misuse should be implemented, such as a
detailed, annual accounting of the cost and activities performed on
official time.
Background
The Civil Service Reform Act of 1978 statutorily requires the use
of official time for collective bargaining, impasse proceedings, and
cases before the Federal Labor Relations Authority (FLRA), the agency
that resolves labor dispute in federal workforce.viii
Outside of this, official time may only be granted ``in any amount the
agency employer and the exclusive representative involved agree to be
reasonable, necessary, and in the public interest.''ix A
sole statutory restriction on official time is that it cannot be
granted for internal union business, such as conducting union elections
or collecting union dues.x A non-statutory limit on official
time found in collective bargaining agreements is a requirement that a
supervisor must authorize official time prior to use. As will be
discussed below, this is not necessarily an effective safeguard.
The Office of Personnel Management (OPM) sporadically collects
official time data from federal agencies and publishes its findings in
a report.xi Agencies report official time in four broad
categories:
1.General Labor Management-Meetings between labor and management
officials to discuss general conditions of employment, labor-management
committee meetings, labor relations training for union representatives,
and union participation in formal meetings and investigative
interviews.
2.Dispute Resolution-Time used to process grievances up to and
including arbitrations and to process appeals of bargaining unit
employees to the various administrative agencies.
3.Term Bargaining-Time used by union representatives to prepare for
and negotiate a basic collective bargaining agreement or its successor.
4.Mid Term Bargaining-Time used by the union representatives to
bargain over issues raised during the life of a term agreement.
According to the most recent OPM report on official time, the cost
to taxpayers from salaries and benefits paid for official time was $157
million in FY 2012.xii Federal employees spent 3.4 million
hours on union activities in FY 2012, the equivalent of more than 1,500
full-time positions.xiii The majority of FY 2012 official
time hours-2.64 million hours, representing 76 percent-was spent on
``General Labor Management,'' activities that are specific to the
union's concerns.xiv
Cost of Official Time Is Greater than Reported
The Office of Personnel Management's official time report is the
best resource available to understand the cost of official time and how
it is used, but it has several weaknesses. OPM only reports the payroll
costs of official time. There are additional non-payroll costs
associated with official time that OPM does not track or report.
Collective bargaining agreements between federal employers and unions
frequently require taxpayer funds to cover the cost of office space,
telephones, and travel for government employees using official
time.xv
Another report does account for these costs at one agency. The
Social Security Administration (SSA) is required to produce an annual
report on its union official time activities. It gives a more complete
picture of the costs deriving from official time at the agency. In FY
2015, the value of official time in salary and benefits was $13.2
million. However, unlike the OPM study, the SSA report also calculates
the cost of travel and per diem, office space, telephones, supplies,
interest, and arbitration expenses associated with official time. These
extra official time costs add up to $2.2 million, which is 15 percent
of the total official time cost at the SSA.xvi If non-
payroll official time costs at all other agencies equaled 15 percent,
it would increase the total costs of official time in the federal
government by $23 million.
Additionally, in 2014, the United States Government Accountability
Office (GAO) issued a report that criticized OPM's accounting methods
related to official time.xvii The report found that the
methodology used by OPM to estimate the cost of official time is
inaccurate. According to the GAO report, OPM estimates the cost of
official time by ``multiplying each agency's average salary as reported
in EHRI [Enterprise Human Resources Integration] for BU [bargaining
unit] employees covered by official time activities by the agency's
total reported official time hours.'' Using a more sound methodology
that uses the actual salary of employees using official time, GAO found
at four of the six agencies it examined, official time costs are about
15 percent higher than the OPM cost estimates.xviii
The same GAO report notes that OPM cannot affirm that agencies
report official time hours accurately.xix Two other GAO
reports that investigate the Department of Veterans Affairs and the
National Labor Relations Board (NLRB) make similar claims. Both of
these reports state that official time hours and activity performed are
not accurately kept, and in some cases not reported xxat
all.xxi It is more than probable that if agencies accurately
reported official time hours the total cost would rise.
Official Time at the Department of Veterans Affairs
Cost and use of official time at the Department of Veterans Affairs
(VA) has steadily increased in recent years. In 2008, according to OPM,
federal employees spent 774,679 hours on official time at a cost of
$29.97 million. In 2012, the numbers jumped to 1.086 million hours,
costing nearly $46.87 million, which amounts to percentage increases of
40 percent and 36 percent, respectively, over the four year period. In
addition to the inflated use and cost over the years, the VA also has
one of the highest official time rates in the federal
government.xxii
In addition to increasing use and costs of official time, Freedom
of Information Act requests reveal that over 200 VA employees-including
over 80 who held nursing positions-spent 100 percent of their time
conducting union activities.
In June 2013, upon learning of the practice of official time at the
VA, Senator Rob Portman (R-OH) and Tom Coburn (R-Okla.) wrote to
Secretary of Veterans Affairs Eric Shinseki, commenting:
Federal employees not serving veterans during official time could
lead to the failure of VA's top goals and the well-being of those who
have sacrificed in the service our nation, could be compromised.
Moreover, the recent decision to overtime ``surge'' to help
eliminate the backlog is troubling considering VA employees who should
be completely dedicated to serving veterans are authorized for large
amounts of official time. Accepting policies that foster poor personnel
management practices in a critical period of VA's history will
undoubtedly negatively impact veterans who could have otherwise been
served by taxpayer dollars now reserved for federal employee overtime
pay. .
[T]his time of sequestration and tight budgets, it is important to
know how so many employees can be spared to serve the interest of
outside groups, instead of carrying out jobs that are essential to the
health, safety and transition of our nation's veterans.
Documents show that your department recently employed at least 85
VA nurses, some with six-figure salaries, who were in 100 percent
official time status. At the same time, the department is recruiting
more people to fill open nursing positions. USA Jobs currently has
openings for hundreds of nursing positions to be
filled.xxiii
Echoing the statement of the Senators is the recent GAO report on
official time at the VA, which notes that the use of official time can
cause staffing and scheduling challenges.xxiv
Worse, in the department's master collective bargaining, VA
employees are permitted to use official time for lobbying instead of
fulfilling the agency's mission of serving veterans.xxv
Official Time Enables Filing of Frivolous Grievances
Subsidizing union activity via official time gives union
representatives the opportunity to file frivolous grievances and other
appeals. This is a predictable outcome, when union representatives are
given a nearly unlimited amount of official time to prepare, file, and
defend federal employees in any kind of appeals procedure.
Of 4,300 grievances filed before the Federal Labor Relations
Authority in FY 2012, unions initiated over 90 percent. Only 20 percent
proceeded to trial before an FLRA administrative law judge, and of
those, the FLRA found an actual violation of the CSRA in only 13
instances-or .003 percent of the 4,300 charges filed.xxvi
It is also important to note, that when cases come before the FLRA,
taxpayers pay for all costs associated with grievances, unfair labor
practice filings, and other representation matters.xxvii
Official time pays union representatives to work on behalf of the
employee, not taxpayers. Tax dollars also pay any and all expenses
incurred by the agency, arbitrators, and employees. This is a costly
perk when only .003 percent of all grievances result in actual
violations.xxviii
Federal Labor Relations Authority member Patrick Pizzella notes
several examples of conspicuously frivolous grievances that, if not for
official time, would likely never be filed. In a case where union
officials of an American Federation of Government Employees Border
Patrol local were granted official time, ``the taxpayers paid for the
parties to bicker over whether the agency or the union should pay the
cost of leftover food from a union-sponsored event that had lower-than-
expected attendance purportedly because the agency would not permit the
union to use its public address system.''xxix
In another grievance, officials of the Federal Union of Scientists
and Engineers asked the FLRA ``to resolve whether an agency was
required to bargain over the union's request to place an American flag
near the entrance of a cafeteria.''xxx
A recent grievance before the FLRA involved employees at a Social
Security Administration teleservice center in Indiana. One day they
reported to work and the ``heating system was not operating to capacity
and that the ambient air temperature in the office was sixty-five
degrees. The Agency swiftly reported the problem to the building owners
and the temperature was raised to sixty-seven degrees by 10:15 a.m. and
sixty-eight degrees by 1:00p.m.''xxxi AFGE, the SSA
employees' union, immediately filed a grievance, arguing that the SSA
``failed to make `every reasonable effort' and should have considered
additional `appropriate arrangements' such as `bringing in supplemental
heat/cooling equipment or closing the office and granting employees
administrative leave.''xxxii
Lobbying on Official Time
Like all other individuals or organizations, federal employee
unions have the right to lobby government, but they should not do so at
the taxpayer's expense. Unfortunately, the FLRA, on multiple occasions,
has ruled that federal employees are allowed to lobby government while
using official time.
There are laws, such as the Anti-Lobbying Act, that prohibit
federal employees from engaging in political activity with the use of
appropriated funds. Despite these restrictions, the FLRA has permitted
lobbying on official time and such provisions appear in a number of
collective bargaining agreements.
In 2000, the FLRA approved a proposal by the Association of
Civilian Technicians, which represents employees at the Department of
Defense, to be granted official time for lobbying
purposes.xxxiii The decision appears to directly contradict
section 8012 of the DOD appropriations law of 2000, which prohibits
federal employees from lobbying Congress:
None of the funds made available by this Act shall be used in any
way, directly or indirectly, to influence congressional action on any
legislation or appropriation matters pending before the
Congress.xxxiv
Somehow, the FLRA determined that the use of official time to lobby
Congress does not conflict with the unambiguous text of the DOD
appropriations law.
In the same decision, the FLRA decided that lobbying government on
official time does not run afoul of another law, the purpose of which
is to prohibit lobbying with appropriated money. The law states:
No part of the money appropriated by any enactment of Congress
shall, in the absence of express authorization by Congress, be used
directly or indirectly to pay for any personal service, advertisement,
telegram, telephone, letter, printed or written matter, or other
device, intended or designed to influence in any manner a Member of
Congress, a jurisdiction, or an official of any government, to favor,
adopt, or oppose, by vote or otherwise, any legislation, law,
ratification, policy, or appropriation, whether before or after the
introduction of any bill, measure, or resolution proposing such
legislation, law, ratification, policy, or
appropriation.xxxv
Notwithstanding efforts made by Congress to root out lobbying by
federal employees while using tax dollars, as a general rule, lobbying
on official time is permitted:
As a general proposition . unions may negotiate for official time
to lobby Congress on employment-related matters, as AFGE Local 12 and
Dept. of Labor, 61 FLRA 209, 216 (2005), explained concerning Proposal
6, ``lobbying Congress. Union representatives shall be granted official
time to lobby Congress concerning pending or desired legislation
affecting conditions of employment of bargaining unit
employees.''xxxvi
In a number of cases, the FLRA has ruled to permit unions to
negotiate for official time for purposes of lobbying activity related
to employee work conditions, including at the Department of Veterans
Affairs.xxxvii
Due to a lack of tracking the activity on, and reporting of,
official time, it is unknown how much time federal employees spend
lobbying Congress on official time. Failing to eliminate official time,
greater restrictions should be placed on using official time to lobby
Congress.
Federal Employees use Official Time without Authorization
There are very few safeguards against unnecessary use of official
time. One limitation placed on official time is that collective
bargaining agreements can require supervisors to sign off on official
time requests.xxxviii
However, according to an Inspector General audit of official time
at the National Labor Relations Board, employees regularly took
official time without receiving authorization from a
supervisor.xxxix
The audit revealed a lack of control over official time usage. Upon
inspection, the audit found that the NLRB did not track the amount of
time given and allowed employees to take official time without prior
approval. The Inspector General found that documentation for requesting
and approving the use of official time was ``generally not
maintained.''
The Inspector General reported:
We also found that the Agency could, but does not, record the use
of official time by bargaining unit employees in its payroll system.
Instead, four different forms are used to record official time
information on a monthly basis. The forms do not match the categories
reported to OPM and compiling the figures for the report appears to
require a certain degree of estimation.xl
The Inspector General concludes:
Given the cost of the official time, the lack of oversight, and the
disparity with the Government-wide average, we question whether the
amount of time used by these officials meets the statutory test of
reasonableness, necessity, and public interest.xli
Conclusion
Official time is an unnecessary subsidy to federal employee unions
that serves the interests of unions and their members, not the public.
The taxpayer does not receive a direct benefit or any discernable
consideration in return for the cost of official time.
Congress should eliminate the federal union subsidy known as
official time. Short of that, detailed annual reporting of official
time should be required and agencies should improve their tracking of
union activity. Taxpayers have a right to know how much of their tax
dollars are used to finance official time and what union activities
federal employees undertake instead of the job they were hired to do.
Notes
i 5 U.S.C. Sec. 7101(a)(1)(A)), https://www.gpo.gov/
fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartF-
chap71.htm.
ii 5 U.S.C. Sec. 7101 (a)(1)(B)), https://www.gpo.gov/
fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartF-
chap71.htm.
iii 5 U.S.C. Sec. 7101 (a)(2)), https://www.gpo.gov/
fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartF-
chap71.htm.
iv For a general critique of collective bargaining in
government, see David Denholm, ``Beyond Public Sector Unionism: A
Better Way,'' Public Service Research Foundation, October 1994, http://
www.psrf.org/issues/beyond.jsp#art1.
v 5 U.S.C. Sec. 7131, https://www.gpo.gov/fdsys/pkg/
USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartF-chap71.htm.
vi Office of Personnel Management, ``Labor-Management
Relations in the Executive Branch,'' October 2014, https://www.opm.gov/
policy-data-oversight/labor-management-relations/reports/labor-
management-relations-in-the-executive-branch-2014.pdf.
vii Americans for Limited Government, ``Full-Time
Official Time: A Special Report Exposing Taxpayer-Funded Union
Employees,'' summer 2016, https://getliberty.org/wp-content/uploads/
2016/06/ALGF-Full-Time-Official-Time-Report--Final--Binder--
06.28.16.pdf.
viii 5 U.S.C. Sec. 7131 (a) (c), https://www.gpo.gov/
fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartF-
chap71.htm.
ix 5 U.S.C. Sec. 7131 (d) (2)), https://www.gpo.gov/
fdsys/pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartF-
chap71.htm.
x 5 U.S.C. Sec. 7131 (b), https://www.gpo.gov/fdsys/
pkg/USCODE-2010-title5/html/USCODE-2010-title5-partIII-subpartF-
chap71.htm.
xi See note 6.
xii Ibid.
xiii Ibid.
xiv Ibid.
xv Mark Flatten, ``Too Big To Manage: Public pays for
government unions to lobby for more federal spending,'' Washington
Examiner, February 4, 2014, http://washingtonexaminer.com/public-pays-
for-government-unions-to-lobby-for-more-federal-spending/article/
2543213.
xvi Social Security Administration, ``Social Security
Administration Report Concerning Expenditures for Union Activities,''
January 21, 2016, https://www.ssa.gov/legislation/
Official%20Time%20for%20Union%20Activities--FY2015.pdf.
xvii Government Accountability Office, ``Actions Needed
to Improve Tracking and Reporting of the Use and Cost of Official
Time,'' GAO-15-9, October 2014, http://oversight.house.gov/wp-content/
uploads/2014/11/GAO-report.pdf.
xviii Ibid.
xix Ibid.
xx National Labor Relations Board Office of Inspector
General, ``Official Time for Union Activities,'' Report No. OIG-AMR-62-
10-01, December 2009, http://www.nlrb.gov/sites/default/files/
attachments/basic-page/node-1700/oig-amr-62-10-01--0.pdf.
xxi GAO, ``VA Could Better Track the Amount of Official
Time Used by Employees,'' Report to the Chairman, Committee on
Veterans' Affairs, House of Representatives, January 2017, http://
www.gao.gov/assets/690/682250.pdf.
xxii ``Labor-Management Relations: REPORTS ON OFFICIAL
TIME,'' OPM website, accessed February 13, 2017, https://www.opm.gov/
policy-data-oversight/labor-management-relations/reports-on-official-
time/.
xxiii ``Portman/Coburn Letter: Should 188 VA Employees
Be Paid To Do Union Work Full-time While Veterans Face Backlog?,'' June
5, 2013, Office of Senator Rob Portman, http://www.portman.senate.gov/
public/index.cfm/press-releases?ID=6bbed8f6-35c2-49e3-a0fb-
fd10a0089f04.
xxiv See note 21.
xxv Contract between Department of Veterans Affairs and
the American Federation of Government Employees and National Veterans
Affairs Council of Locals, https://www.va.gov/LMR/AFGE--Master--
Agreement--Final.pdf.
xxvi AFGE, Local 2913, 67 FLRA 107 (2013), https://
www.flra.gov/decisions/v67/67-26.html.
xxvii Ibid.
xxviii Ibid.
xxix Ibid.
xxx Ibid. The Federal Union of Scientists and Engineers
(FUSE) is a local of the National Association of Government Employees,
which itself is a local of the Service Employees International Union.
Federal Union of Scientists and Engineers, ``About FUSE,'' FUSE
website, accessed February 10, 2017, http://fuseunion.org/about-fuse.
xxxi AFGE, Local 3571, 67 FLRA 178 (2014), https://
www.flra.gov/decisions/v67/67-46.html.
xxxii Ibid.
xxxiii ACT, Razorback Chapter 117, 56 FLRA 62 (2000),
https://www.flra.gov/decisions/v56/56-062.html.
xxxiv Department of Defense Appropriations Act, 2000,
https://www.govtrack.us/congress/bills/106/hr2561/text.
xxxv 18 U.S.C. Sec. 1913, https://www.law.cornell.edu/
uscode/text/18/1913.
xxxvi Peter Broida, ``A Guide to Federal Labor
Relations Authority Law and Practice,'' 2014, American Civil Service
Law Series, http://deweypub.com/store/15FLRA.html.
xxxvii Here is a selection of cases permitted lobbying
on official time decided by the FLRA: NFFE, Local 122, 47 FLRA 105,
(1993), https://www.flra.gov/decisions/v47/47-105.html. NFFE, Local
259, 52 FLRA 93, (1997), https://www.flra.gov/decisions/v52/52-
093.html. ACT, Granite State Chapter, 54 FLRA 38, (1998), https://
www.flra.gov/decisions/v54/54-038.html.
xxxviii See note 20.
xxxix Ibid.
xl Ibid.
xli Ibid.
Statements For The Record
CINDY BROWN BARNES
The following is Cindy Brown Barnes' response to a question posed
by Representative O'Rourke during the February 16, 2017 hearing on the
use of official time for union activities at the Department of Veterans
Affairs-pp.53-54 of the uncorrected hearing transcript. Please strike
Ms. Barnes' response, and replace with the following:
Response from 3-9-17: For our January 2017 report, we did not
analyze the amount of official time used by employees at agencies other
than VA, and we did not examine other agencies' practices for tracking
and recording unions' use of official time. According to OPM's 2014
Labor-Management Relations in the Executive Branch report, VA used the
most official time in fiscal year 2012 compared to the other agencies
included in the report in terms of total hours. However, according to
the OPM report, VA had a lower rate of official time use expended per
bargaining unit employee compared to several other large agencies. The
rate of official time use is derived by dividing the total number of
official time hours by the number of bargaining unit employees. For
example, VA had a rate of 4.8 hours per bargaining unit employee,
compared to other large departments such as the Departments of the
Treasury and Transportation, which had a rate of approximately 7.3 and
6.4 hours per bargaining unit employee, respectively.
[all]