[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
A LEGISLATIVE HEARING ON H.R. 1461, THE ``VETERANS, EMPLOYEES, AND
TAXPAYERS PROTECTION ACT OF 2017''
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HEARING
BEFORE THE
SUBCOMMITTEE ON ECONOMIC OPPORTUNITY
OF THE
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, MARCH 21, 2017
__________
Serial No. 115-6
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Printed for the use of the Committee on Veterans' Affairs
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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
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
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
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Tuesday, March 21, 2017
Page
A Legislative Hearing On H.R. 1461, The ``Veterans, Employees,
And Taxpayers Protection Act of 2017''......................... 1
OPENING STATEMENTS
Honorable Jodey Arrington, Chairman.............................. 1
Honorable Beto O'Rourke, Ranking Member.......................... 3
WITNESSES
Ms. Kimberly Perkins McLeod, Acting Executive Director, Labor
Management Relations, U.S. Department of Veterans Affairs...... 4
Prepared Statement........................................... 26
Accompanied by:
Mr. Rondy Waye, Human Resources Policy Advisor, Office of
Human Resources and Management, U.S. Department of
Veterans Affairs
Ms. Shirley Parker Blommel, President, Local 390, St. Cloud VA
Health Care System, American Federation of Government
Employees, AFL-CIO............................................. 5
Prepared Statement........................................... 27
Mr. Derk A. Wilcox, Senior Attorney, Mackinac Center for Public
Policy......................................................... 7
Prepared Statement........................................... 29
STATEMENTS FOR THE RECORD
American Federation of Government Employees, AFL-CIO............. 32
A LEGISLATIVE HEARING ON H.R. 1461, THE ``VETERANS, EMPLOYEES, AND
TAXPAYERS PROTECTION ACT OF 2017''
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Tuesday, March 21, 2017
Committee on Veterans' Affairs,
U. S. House of Representatives,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 2:04 p.m., in
Room 334, Cannon House Office Building, Hon. Jodey Arrington
[Chairman of the Subcommittee] presiding.
Present: Representatives Bilirakis, Wenstrup, Rutherford,
Banks, Roe, O'Rourke, Takano, Correa, Rice, Walz.
Mr. Arrington. The Subcommittee will come to order.
OPENING STATEMENT OF JODEY ARRINGTON, CHAIRMAN
I welcome everyone here today to the legislative hearing on
the bill I have introduced, H.R. 1461, the Veterans, Employees,
and Taxpayers Protection Act of 2017, or the VET Protection
Act.
Before I recognize my friend and fellow Texan, Mr. Beto
O'Rourke, for his opening comments, I want to briefly describe
what the bill does and provide some context for its
introduction.
At the joint hearing the Subcommittee had with the
Subcommittee on Government Operations of the Committee on
Oversight and Government Reform, we learned in great detail
about the use of official time within the Department of
Veterans Affairs. At our hearing, GAO released their recent
report on official time at VA, where they found that VA is
still not accurately or sufficiently tracking how much time
employees are using on official and that the data that we do
have from the VA is unreliable at best.
As I said at that hearing, this report begs the question:
Are people taking advantage of the system? And I would conclude
that most likely they are, because whether intentional or not,
without a functioning system there is no means--consistent
means to track official time, even if you wanted to.
That is why my bill would require the VA to consistently
track the use of official time and submit a report to Congress
and the Office of Personnel Management on its use to address
the issue raised by the GAO report. This reporting requirement
would also bar VA from using ranges or estimates in their
reporting. I think this provision and this change are
critically important because as the old saying goes, ``you
can't manage what you can't measure.''
Another issue that was highlighted in our joint hearing was
the amount of time that doctors, nurses, clinicians, and other
employees who are critical to VA's mission, are spending on
official time and union activities, as opposed to the job they
were hired to do and the job that they are being paid to do by
taxpayers. We learned that VA has doctors, nurses, medical
assistants, addiction therapists, pharmacists, disability
claims raters, senior raters, and the list goes on and on,
serving on official time; many of them on a hundred percent of
official time and many making over six figures, which is paid
for, again, by the American taxpayer.
This means we have hundreds, if not thousands, of VA
employees spending part, and sometimes all, of their working
day serving the union instead of directly serving our veterans;
again, the job that they were hired to do.
My bill would address this problem by prohibiting VA
physicians, dentists, podiatrists, chiropractors, or
optometrists from spending any of their time on union
activities. It would prohibit any employee involved with direct
patient care from spending more than twenty-five percent of
their time on union activities and it would prohibit any VA
employee from spending more than fifty percent of their time on
union activities. Furthermore, the bill would prohibit the use
of official time for political activities or lobbying.
Now, I want to be clear. These provisions are not meant to
completely eliminate the use of official time at the VA. As the
amount of allotted hours in a union's official time bank would
not change, but instead, this bill would bring common sense
reforms to the use of official time and would ensure that those
who are charged with providing care and services to veterans
are fulfilling the VA's mission and doing their jobs.
As I said at our hearing last month, the legal standard for
official time is to use it on ``representational work'' that is
``reasonable, necessary, and in the public's best interests.''
That is at the heart of the issue for me today in our
discussions. I don't believe the average American would see
doctors and nurses receiving a taxpayer-funded salary,
especially with the context of our veterans and the current
service to our veterans from the VA, as reasonable or as being
in the public's interests.
Additionally, my bill would add--would allow, rather,
collective bargaining unit employees to join or leave the union
at any point. Currently, collective bargaining agreements at
the VA seem to be designed to make it nearly impossible for
employees to stop paying union dues and nearly impossible to
leave the union when they choose.
For example, the VA's master contract with AFGE requires
that the only time an employee can make a request to stop
paying dues is during the ten-day period that annually
coincides with them joining the union.
VA's master contract with the National Nurses United goes a
step further and limits their window to leave the union to the
anniversary of their decision to join the union.
Clearly, these restrictions are in place to do one thing
and one thing only; limit the employee's freedom of choice--and
I will make it two things--and generate revenue for the union.
Finally, my bill would extend the probationary period for
new employees to 18 months and would require that the manager
make an affirmative decision that the employee has successfully
completed their probationary period before becoming a full-
fledged civil servant with all of its protections.
Members, I know many will say that my bill is anti-union or
even anti-employee. Nothing could be further from the truth, as
I do see that there is limited value in what the unions bring
to the table, and I am not here to litigate the ability for
Federal employees to unionize.
I am, however, trying to restore public confidence in the
Department of the Veterans Affairs by ensuring that taxpayer
dollars and hard-working Americans--or of hard- working
Americans, are focused on advancing the VA's mission. In the
end, the VA and the status quo are not sacred, but our veterans
are.
I thank the witnesses for being here this afternoon. I look
forward to your testimony and now I want to yield five minutes
to my friend, fellow Texan, and Ranking Member Mr. O'Rourke.
OPENING STATEMENT OF BETO O'ROURKE, RANKING MEMBER
Mr. O'Rourke. Mr. Chairman, thank you.
I think the bottom line for me, and I would argue for us,
as Members of this Committee and Members of the U.S. Congress,
is to ensure the highest quality and timeliness in the care and
services that we deliver to the veterans who have earned that
care and services.
If official time improves our ability to do that, then we
should have official time. If it detracts from our ability to
do that, we should not have official time.
If we conclude that official time helps us to deliver
quality care and services to veterans, then I think we have to
ask ourselves what is the best way to organize that official
time?
And if we conclude that in some cases, having a hundred
percent of an employee's day dedicated to official time because
it improves the delivery of care and services to veterans is
helpful, then we will support that, or I will support that. If
we find that it does not, then I will not support one hundred
percent of official time.
And then the third category the Chairman mentioned, if we
conclude that certain classes of VA employees should be able to
participate in official time and that it is helpful in
delivering care and services in a timely, quality way, then we
should support that, and if we conclude that it does not, then
we should not.
I think we need the data and the facts to make informed
decisions in every one of these areas, and so I agree with the
Chairman, and I think with probably everyone on this Committee,
that the VA's failure to measure official time effectively has
put us at a disadvantage in answering these questions. And that
is one of the first things that we need to be able to do, which
is to measure; that which is not measured cannot be improved
and we cannot make informed decisions without it.
It is going to be hard for me to conclude beyond that, the
value in these areas until we have the data and the facts, but
I look forward to the testimony from this panel and we will
reserve questions until after I hear from them.
So, Mr. Chairman, thank you, and I yield back.
Mr. Arrington. Thank you, Mr. O'Rourke.
I want to now recognize our first and only panel of
witnesses today. With us we have Ms. Kimberly Perkins McLeod,
Acting Executive Director for Labor Management Relations at the
U.S. Department of Veterans Affairs, and she is accompanied by
Mr. Rondy Waye, a Human Resources Policy Advisor at the Office
of Human Resources Management at the U.S. Department of
Veterans Affairs. Welcome.
We also have Ms. Shirley Parker Blommel, President of the
Local 390 unit of the American Federation of Government
Employees of St. Cloud VA Health Care System and Mr. Derk A.
Wilcox, a senior attorney at the Mackinac Center for Public
Policy. I want to thank you all for being here today.
Ms. McLeod, let's begin with you. You have five minutes for
your opening statement.
STATEMENT OF KIMBERLY PERKINS MCLEOD
Ms. McLeod. Thank you.
Good afternoon, Mr. Chairman, Ranking Member O'Rourke, and
other Members of the Subcommittee. Thank you for the
opportunity to discuss H.R. 1461, entitled the ``Veterans,
Employees, and Taxpayers Protection Act of 2017,'' which
pertains to the use of official time and probationary
employees.
I am accompanied today by Rondy Waye, human resources
policy advisor, in VA's Office of Human Resources and
Management.
VA generally supports H.R. 1461, but we have some concerns
with the legislation. With regard to section 741, the inclusion
of this recordkeeping requirement will result in increased
costs in resources for the VA. The Department currently has the
ability to electronically track union official time for
employees in the VA Time and Attendance System, or VATAS, and
is in the process of fully implementing the system with the
projected completion date of July 2018.
Using VATAS, the Department can now track the categories of
official time in accordance with OPM's four categories, term
negotiations, midterm negotiations, general labor management
relations, and dispute resolution, similar to the way all other
agencies track official time across the Federal government;
however, section 741 would require the capture of additional
information regarding official time which would require a
revision to VATAS, as well as the use of additional systems,
resulting in additional costs in order to capture the monetary
and space aspects of the bill.
Section 741 also calls for the collection and analysis of
subjective data, requiring VA to determine the impact that
granted official time has on its operations.
Overall, to maintain the tracking and reporting of this
administrative data total level of granularity required in this
bill, VA would be required to create additional systems at
significant cost. To reduce the cost burden, we ask that the
Committee reconsider some of the granular reporting
requirements in the bill and we would welcome the opportunity
to work with the Committee to alleviate these concerns while
achieving the important objective of increased transparency.
With respect to section 742, VA does not oppose the time
limitations established in the legislation, however, VA finds
certain lobbying activities on behalf of VA, beneficial to VA
stakeholders, the veterans. Indeed, veterans have benefited
from union lobbying efforts in areas such as expansions of
scopes of practice for nurses and pay and hiring flexibilities
to provide expedited patient care.
The Department is also generally in favor of the types of
limitations on the use of official time for certain individuals
set out in section 742. We would prefer that doctors spend all
their work time caring for veterans; in addition, we think it
is important for every employee to spend at least half of their
work time performing management- directed tasks. Currently,
however, the law does not allow us to limit official time to
particular employees or classes of employees. If this bill
passes Congress and becomes law, VA will have that capability.
VA also notes that unless otherwise superceded by section
742, the provisions in 5 U.S.C. 7131 continue to apply to
certain mandatory official time. To the extent the intent is to
supercede that provision, VA recommends clarifying language in
section 742. We would be happy to work with the Committee on
this language.
VA does not have a position with regard to section 743,
however, we propose that the bill include clarifying language
regarding what termination means in the context of the bill. VA
recommends that the term ``termination'' be clarified to mean
the submission of an employee's SF-1188 to his or her servicing
HR or payroll office.
With regard to section 719, VA does not oppose this
provision. We note that under 5 U.S.C. 7511, certain VA
probationary employees are already entitled to appeal a
separation action to the Merit Systems Protection Board if they
have worked for the Federal Government for more than 12 months.
The 18-month probationary period prescribed by this bill would
not change this right.
Consequently, to the extent that the intent is to curtail
appeal rights during the probationary period, relevant changes
should also be made to 5 U.S.C. 7511. VA would be happy to work
with the Committee on this language.
Mr. Chairman, this concludes my statement. VA looks forward
to working with the Committee to provide technical guidance on
those elements we have noted, may be of concern. I am happy to
answer your questions.
[The prepared statement of Kimberly Perkins McLeod appears
in the Appendix]
Mr. Arrington. Before we move to the next panelist, if you
would indulge me, I failed to recognize the Ranking Member of
the VA Committee, Mr. Walz--thank you for joining us today--and
I want to yield as much time as you need to make comments.
Mr. Walz. I'll wait until the end, Mr. Chairman. Thank you.
Mr. Arrington. You sure?
Mr. Walz. Yeah.
Mr. Arrington. Okay. Thanks for joining us again and let's
continue on with our panelist, Ms. Parker Blommel. You have
five minutes.
STATEMENT OF SHIRLEY PARKER BLOMMEL
Ms. Blommel. Thank you.
Chairman Arrington, Ranking Member O'Rourke, and Members of
the Subcommittee, thank you for the opportunity to testify
today.
I come to work at the St. Cloud VA as an LPN in 2008 after
working at several different private practices in rural and
urban areas.
I was elected president of Local 390 in 2014 and vice
president in 2012. Our bargaining unit covers a wide range of
positions including housekeepers, doctors, food service
workers, therapists at the St. Cloud VA main campus and the
CDOCs.
After one year at the St. Cloud VA as a nurse working on
the floor, I signed up to be a union member, went to meetings,
and learned that I could make a difference. Also, my father and
son have served our country overseas in the Army and I want to
give back for all that they have sacrificed. I realized that
getting involved with AFGE, I could help the front line
employees learn how to work with management to improve veteran
experience.
Being a local officer has been very fulfilling for me and
it has taught me it is not about, the union is right and
management is wrong, but rather, that we have a shared goal in
improving care. And when the union and management work
together, we can move towards the same positive outcome.
When I first came as vice president of the union, I was
only on fifty percent official time. As the need increased for
us to be present, management frequently pulled me from my
regular duties. As I was elected local president, it was clear
that management's expectation was the president would be
working only administrative hours. Management likes the
continuity of having me work one hundred percent official time
so I am available when they call a meeting, schedule a
grievance hearing, or when they have an employee crisis.
In 2015, veterans' employees went outside to complain about
the lack of providers and the increase primary care panels.
Congressmen Walz and Emmer came to our facility after the union
contacted them. The union coordinated a meeting with the
congressmen and the employees where they could share their
concerns without fear of retaliation.
After mediation, we now have a leadership in our facility
who is willing to work closely with the union to address the
issues.
Another example is when OSHA inspectors came to our
facility in 2013 and found a long list of violations; for
instance, when staff did not always have the right equipment to
avoid bloodborne injuries when handling sharps.
As the union representative, I worked with OSHA and
management to ensure the violations were corrected and made
sure staff had the correct training so our environment is safer
for our employees, also for our veterans we serve.
Every day I go to bat to serve--to work for our employees
to resolve differences with management as quickly as possible.
One hundred percent of our housekeepers are combat veterans and
they play a critical role in patient care by keeping operating
rooms and other areas free of infection; many of these veterans
suffer from other combat-related injuries.
When these veterans came to the union for help, we
explained their rights under Family Medical Leave Act and we
reached out to management to soothe the tensions that asked for
greater understanding. These employees are combat veterans who
are America's heroes. They deserve a job and they deserve to be
treated with dignity.
My final example was just recently a new directive on
Querying State Prescription Drug Monitoring Program that came
out. This has a big impact on the working conditions. Providers
will have to begin to query when veterans get narcotics or
change in prescriptions.
The union worked with management to determine which
positions are best-suited to assist with the queries. We also
need to continue to work together to make sure providers
understand who should be delegated this task and the process
that needs to be completed.
If H.R. 1461 were to become law, I would only be able to
spend a quarter time fulfilling my duty of fair representation.
The knowledge base and effectiveness would be different,
depending on who was on official time that day. There would be
no consistency. This would have an adverse impact on our
veterans, our employees, and as well as management.
We achieve more consistency and efficiency when labor and
management are working with the same knowledge base among
individuals. It is a faster, smoother process when we have one
person working full-time on representation, rather than four
people at twenty-five percent.
If you don't have the right person at the table who can
actually make the binding decisions, then everything will get
delayed.
This concludes my statement, and I would be happy to answer
any questions you have.
[The prepared statement of Shirley Parker Blommel appears
in the Appendix]
Mr. Arrington. Thank you, Ms. Parker Blommel.
And finally, Mr. Wilcox, I will now recognize you for five
minutes.
STATEMENT OF DERK A. WILCOX
Mr. Wilcox. Good afternoon, Chairman Arrington, banking--
Ranking Member O'Rourke, and Members of the Committee. Thank
you for holding this hearing and giving me an opportunity to
discuss this issue of the use of official time at the
Department of Veterans Affairs.
My name is Derk Wilcox; I am the senior attorney at the
Mackinac Center for Public Policy. The Mackinac Center is a
nonpartisan research and educational institute, dedicated to
improving the quality of life by promoting sound solutions to
public policy questions.
I would like to note that as a practice attorney, I have
had the honor of representing many veterans as their court-
appointed counsel in mental health, guardianship, and
conservatorship hearings. I have spent many hours at the VA
facility in Ann Arbor, Michigan, working with the staff and
veterans there.
The VA hospitals are beset with many problems, as they try
to meet the needs of our veterans and official time is added to
those problems. Official time is time spent by Federal
employees, who are paid to perform representational work for
their union, instead of their regularly assigned work.
In the recent past, this body has heard testimony from the
Office of Personnel Management, estimated that in 2012, the
most recent year for which data is available, employees at the
VA used just over one million hours on official time. The
estimated cost to the VA was just under 47 million.
The GAO has criticized the OPM's method of accounting,
saying that it undercounts the amount of salaries devoted to
official time. Testimony before this Committee on February
16th, 2017, also criticized the OPM methodology, because it
failed to account for office space, equipment, phones, travel
time, and other factors.
But what the GAO did not look at is whether or not the
official timekeeping itself is flawed. From my investigations,
it appears that use of official time is underreported. I
examined cases brought before both, the Department of Labor's
Employees' Compensation Appeals Board and the Federal Labor
Relations Authority.
These cases involved the use of official time by VA
employees and official time was an essential part of these
cases. In so doing, I found several cases where more time was
devoted to the union's activities, than had been reported as
official time, as set forth in my written statement.
Perhaps the most egregious was an FLRA case out of the
medical center at Leeds, Massachusetts. A clinical
neuropsychologist was also the union president. She was allowed
to spend sixty percent of her work week on official time;
however, an arbitrator found that because of her official time,
it was an unfair labor practice to require her, as part of her
performance appraisal plan, to see any patients per week
because ``official union duties placed time constraints on the
grievance clinical schedule during the work week.'' It was
unfair to require her to see as few as one patient for testing
per week; in short, what was recorded as sixty percent official
time effectively became a hundred percent official time.
The enactment of H.R. 1461 could provide the necessary tool
to properly count the hours and total cost of official time at
the VA; likewise, it was restrict official time activities so
that physicians, like the psychiatrist in the case above at the
Leeds facility, are using their skills and expertise on the
treatment for which they are trained and hired and not for
union activities.
Section 741(a)'s requirement that time be accounted for
accurately and to a specific degree, should eliminate the case
of duty time being used for union activities outside of
official time, as the aforementioned cases found.
Section 741(2)(E) and (F) should correct the flaws pointed
out in the February 16th CEI testimony before this body which
pointed out that official time was not accounting for first
thing benefits, office space, or other facilities used for
official time.
Section 742(a) correctly restricts official time for being
used for political activities or activities related to
lobbying.
In summary, when cases have been looked at in-depth, it has
been shown that employees have been using more time for union
activities than has been allocated to them as official time.
H.R. 1461 would appear to be a necessary first step to properly
track how much time VA employees spend on official time,
account for the true costs, and restrict the improper uses of
official time.
Following the enactment of H.R. 1461, we should get a more
complete picture of the extent of the problem and better enable
managers to effectively use the resources available to help our
veterans.
I would like to thank this Subcommittee and for this
opportunity and welcome any questions.
[The prepared statement of Derk A. Wilcox appears in the
Appendix]
Mr. Arrington. Thank you, Mr. Wilcox.
I now will yield myself five minutes for questions and let
me start by saying that I think we would all agree that the
most-important asset to the VA in its accomplishing its mission
to serve veterans, like most organizations, would be its
people. And I have been in management positions; I have managed
in government, I have managed in the private sector, and I
can't imagine that you could effectively manage your personnel
assets when you have people that are spending a hundred percent
of their time on union activities or even fifty percent of
their time on union activities.
And I agree with the Ranking Member that, you know, our job
is to make sure that you guys have the tools and the VA
leadership has the tools to maximize their effectiveness and
that where there are distractions, we need to root them out
because we all want desperately to make good on our promises to
our veterans.
So, with that, let me ask you, Ms. Parker Blommel--I'm
sorry--Blommel Parker--I apologize--what is the mission of the
VA, just in your own words? I am not looking for the textbook
answer.
Ms. Blommel. The mission of VA is to serve our veterans.
Mr. Arrington. Yeah, hit the button. There you go.
Ms. Blommel. The vision of the VA is to serve our veterans.
They are our heroes. They have sacrificed their lives for us.
Mr. Arrington. And then your job, when you applied for the
job, and you interviewed for the job, and ultimately got the
job, what is the mission of your job, specifically, to advance
that overarching goal of serving our veterans?
Ms. Blommel. When I was hired for the VA--I am a licensed
practical nurse; I have been there nine years--and my mission
is to take care of our veterans, to honor them for the
sacrifice, to take care of them physically and mentally,
however it needs to be done.
Mr. Arrington. So, the three-part legal test, as I
understand it, for appropriate use of official time is that it
is necessary, reasonable, and in the public's best interests.
You were hired to provide health care services to veterans,
to advance the overall mission to serve veterans. How can you
spend a hundred percent of your time--and with all due respect;
I know there are more people that are spending a hundred
percent of their time than you--but give me your perspective on
how you can achieve that desired outcome you described as your
mission, and that which you are paid to do by taxpayers, while
you are a hundred percent active on official time advancing
union objectives.
Ms. Blommel. Being on a hundred percent time, what I do, I
take care of our veterans. First of all, when a directive or a
policy comes forward, we have the opportunity to look at that
and see what work needs to be done. I take the policy, I look
at it, I go to the front line staff and I say, this is the
policy that is coming out. How can we do this? How can we make
this work the best? Because they are the subject-matter
experts.
And I get that information and I go back to the meeting or
the Committee and say, this is what is going on, this is what
is happening, how can we do it better? We got this directive
from the VA; let's make it right.
Mr. Arrington. Ms. McLeod, is--we put a standard in the
legislation of no more than fifty percent of their time. Do you
get--do you have managers express their frustration with their
ability to manage their operation, whatever component of the
VA, on account of this runaway official use of official time?
Ms. McLeod. Certainly, we have managers who have expressed
frustration with, you know, official time. We have also
certainly had managers, and the GAO report notes, we have had
managers who appreciate certain employees being on official
time for the reasons that that witness discussed. So, we do see
both sides.
Mr. Arrington. Let me ask you this, is it necessary for
employees to spend a hundred percent of their time? Is it
absolutely necessary for employees to spend a hundred percent
of their time on union activities?
Ms. McLeod. The Department does not think so. We support
the legislation.
Mr. Arrington. Do you believe it is necessary to spend
fifty percent of your time? Is it necessary to spend fifty
percent of your time on union activities? It is my last
question; I will let you answer it.
Ms. McLeod. Well, the Department supports the legislation,
and so to the extent the legislation caps it or limits it to
fifty percent, no more than fifty percent, the Department
supports that. And we don't believe that any time over fifty
percent would be reasonable, necessary, or in the public's
interest.
Mr. Arrington. Okay. I yield to the Ranking Member for five
minutes for questions.
Mr. O'Rourke. Great. Thanks, Mr. Chairman.
I ask unanimous consent to submit two letters; one from
National Nurses United, dated March 20th, 2017, and the other
from Michelle Washington, Ph.D., psychologist, AFGE member.
Mr. Arrington. Without objection.
Mr. O'Rourke. So, a couple of questions here. First, some
observations. I heard Ms. McLeod acknowledge the value of
official time and she even went further and talked about the
value of bargaining unit employees using official time to lobby
Members of Congress. And you cited, helping to inform Members
of Congress about expanding scope of practice and helping to
inform Members of Congress about the value of flexibilities in
hiring at a time that we're 43,000 clinical positions short and
we desperately need those providers, psychologists and
psychiatrists primarily, in community like El Paso, Texas. So,
I appreciate you, from the VA, underscoring the importance.
Answer this question for me, when we hear from our AFGE
president in St. Cloud that the expectation was that, from
management, that she always be available to expedite the
process to better serve veterans and ensure that management is
effectively coordinating with the employees to serve those
veterans, what is your argument against hundred percent? That
is management asking for a hundred percent, not AFGE, and so
what is your argument as somebody who oversees management?
Ms. McLeod. The Department believes that, you know, at
certain levels, official time is valuable and so--
Mr. O'Rourke. But I am asking about a hundred percent, so
answer that question for me, please.
Ms. McLeod. I mean, I think to the extent that the
Department or her management is requesting her assistance to
perform official time or union representational activities,
that local manager knows best and they are requesting the time.
Mr. O'Rourke. So that local manager knows best and is
requesting a hundred percent time, and yet, you are supporting
a cap at fifty percent. So those two do not seem to match up.
So, if you see the value and would like to give discretion
to that local manager who understands the value in hundred
percent official time in that VA, why would you support
legislation that would remove the ability of that manager to do
what is best for the care for those veterans, based on
coordinating with the employees who deliver it?
Ms. McLeod. I can only say the Department supports
legislation and the limitations that are placed on it.
Mr. O'Rourke. And then I have a question on the other side
of this for Ms. Blommel, and I want to thank you for traveling
here to Washington DC and being before us. I have got to say
that the Chairman's argument that when we have a time of
clinical positions that are vacant, that, you know, having a
doctor at a hundred percent and not having them perform some
clinical function is pretty persuasive.
Make the argument to me that those primary or those care
providers, who are on the front lines of delivering that care,
should not have some part of their day devoted to care
delivery.
Ms. Blommel. Most physicians, even if they have
administrative jobs, they do have to have care--have to have so
many people on a panel. So, most of them are not a hundred
percent, because they have to care for veterans.
The majority--why you have a physician that wants to be in
the union is because they have a greater understanding of what
is happening on that side and they can bring a wide range of
talent and knowledge to the union and for management.
Mr. O'Rourke. Okay. I think you can tell where I am getting
to. I see the value in official time. I see the value in a
hundred percent official time, at least as management has
conveyed it to us, where they want to more effectively
coordinate with the staff that is delivering that care.
I also see an argument where we have shortages in clinical
positions that you might want to have some controls on that.
So, I am trying to find the ideal place for us to be.
Going back to Ms. McLeod, 2018 July to get this stuff done
is--I mean we are at the end of this session of Congress by
then, functionally. Our ability to conduct oversight on what
you have implemented before the next Congress kicks in is gone.
Why can't you do that sooner? Why can't we have the
information this summer?
Ms. McLeod. The Department, we are about sixty percent, you
know, in, in terms of fully implementing VATAS and we are
moving as quickly as we can, trying to make sure that as we
implement, the system is working appropriately and people are
trained.
Unfortunately, I am not responsible for making sure that is
fully implemented, but we are moving as rapidly--
Mr. O'Rourke. Who do we talk to--who do we talk to if you
are not the person responsible? How do I find out how to get
that information sooner? It just does not seem acceptable to me
to wait until July 2018--
Ms. McLeod. Office--
Mr. O'Rourke [continued]. --you know, otherwise, we are
going to move forward with a bill that I think is very well-
intentioned from the Chairman's standpoint; I think he wants to
do the right thing for veterans, but from my standpoint, it
does not have the data or the information to support the
conclusions. So, you know, you are not giving me much to work
with here.
I yield back to the Chairman.
Mr. Arrington. Thank you, Ranking Member.
And I want to recognize or just acknowledge that the
Chairman of our VA Committee is here as well, but I am going to
yield to Mr. Rutherford, for five minutes for questions.
Mr. Rutherford. Thank you, Mr. Chairman.
And I will direct my first question to Ms. Perkins. If you
could, in your written statement, it says, currently, however,
the Federal Service Labor-Management Relations Statute does not
allow us to limit official time to particular employees or
classes of employees.
Can you tell me where that excluding language is within the
Federal Service Labor-Management Relations document?
Ms. McLeod. You are not going to find it necessarily in the
statute, but the Federal Labor Relations Authority that
interprets the statute through case law, they have found that
we can't limit the employees or the occupations that those
employees sit in, in terms of providing official time.
Mr. Rutherford. So, there is some finding by them?
Ms. McLeod. There are a number of cases that discuss that
you can't limit who those individuals are who serve; those are
elected positions through the union and that determines,
generally speaking, who is on a hundred percent or somewhere
near that.
Mr. Rutherford. Okay. However, you go on to state also,
that if this bill passes Congress and becomes law, you would
have that ability.
Ms. McLeod. That is correct, sir.
Mr. Rutherford. Okay. So, we need to make sure that we do
put that enabling language in the bill, Mr. Chairman, so that
we have that right or the VA has that right to limit those
positions.
Next, I would like to ask Ms. Blommel--am I saying that
right?
Ms. Blommel. Yes, that is right?
Mr. Rutherford. Thank you.
Ms. Blommel. You mentioned the directives that come down
that management--or official time is used to help management
carry out directives that come down.
Can I ask, what does management do, then?
Ms. Blommel. What management will do is they will get the
new directive from the VHA. They will read it over and then
they will contact the president of that local and they will
forward the directive to me and I have the opportunity to read
it. We gather at a meeting and we go through it, pretty much
line by line, of the changes of work condition.
The example they gave before was the prescription--is that
the physicians now have to query the veterans to make sure that
they do that, but they can also select a delegate. The question
is, who is the most-appropriate delegate?
In the directive, it says it could be also a licensed--an
unlicensed person. RVA does not find that appropriate. We find
that having a licensed nurse be the most appropriate. So, it
was working that out; how this information--and how we are
going to do it and how we are going to get the training to the
physicians and the correct people.
Mr. Rutherford. So, are there not VA managers who are
making those decisions?
Ms. Blommel. The direct--yes.
Mr. Rutherford. I mean, I am simply trying to find out who
is running the VA; is it union members or is it VA management?
Ms. Blommel. We have managers who are--who work for the VA,
yes, sir.
Mr. Rutherford. Okay. You haven't--but is management union
members also?
Ms. Blommel. No, sir.
Mr. Rutherford. Okay. Thank you, Mr. Chairman.
I yield back my time.
Mr. Arrington. Thank you, Mr. Rutherford.
And now, I will yield five minutes to Mr. Takano.
Mr. Takano. Thank you, Mr. Chairman.
Ms. McLeod, H.R. 1461 is predicated on the notion that
allowing employees to be on a hundred percent official time is
getting in the way of the veteran's access to health care, yet,
one of the criticisms of the GAO is--the report, is that the VA
itself doesn't really have a firm accounting for official time,
right?
And because we don't have it, my question is, I don't
understand how we can come to the conclusion that official time
is impeded or not. I mean I am having a hard time how we get to
that conclusion.
My--but isn't there--I mean, I have a hard time thinking
about the 45,000 current vacant positions at the Veterans
Health Administration. I mean, I just think compared to the
small number of employees that we have on the official time,
that the 45,000 vacancies pose a far, far greater, I think,
impediment to VH--to giving appropriate health care to our
veterans.
So, my thing is, I want to ask you, do you have any idea of
how many employees that Ms. Blommel represents in her area?
Ms. McLeod. No, I don't know how many employees she
specifically represents now. I know that approximately 285,000
of our employees are bargaining unit employees, but that is
stretched across all of the unions that represent them.
Mr. Takano. And do you know how many meetings she might
attend every day?
Ms. McLeod. I do not.
Mr. Takano. I mean, might there be a cost savings that
accrues by having a professional, having someone on official
time actually try to resolve these disputes, than to have
someone else do it, I mean, to have to hire extra people to go
solve these disputes?
Ms. McLeod. Sir, we haven't looked at the cost-saving
aspect of the time that employees spend on official time. I can
only give you the numbers themselves, but we have never looked
at what the cost effect is of that.
Mr. Takano. Don't you think we might want to do that before
we move forward with a bill that blanketly says that a hundred
percent official time is bad, without knowing all the facts,
without knowing whether or not there might be a cost savings?
Ms. McLeod. I believe a portion of this bill does require
us to take a look at some pieces of that; the amount of
benefits and costs and salary for each official time employee
and what that is for the agency. So, we would be looking at
that as part of the reporting requirements.
Mr. Takano. Well, you know, I am concerned that with the
hiring freeze and the shortages, the attrition rate, the--you
know, the GAO tomorrow is going to testify about the VA's
limited HR capacity. Currently, there is a twelve percent
attrition rate at VA's HR workforce that is being caused, in
part, by unmet HR staffing targets, contributing to increase HR
workloads and staff burnout.
Additionally, HR occupations are not exempt from the hiring
freeze and the GAO believes that a prolonged freeze could
further erode the VA's ability to provide HR services.
Employees who are on official time solve workplace disputes
and resolve issues between front line employees. In light of
this shortage and attrition rate, it would seem to me that
there is probably even maybe a greater demand, but we don't
know that because we don't have accurate statistics or we don't
have a study to know whether or not there might be a cost
savings, especially in this current environment.
Ms. McLeod. We don't know.
Mr. Takano. Ms. Blommel, whistleblowers, don't they
especially often need people on official time? They are
reluctant to come forward without having an official time VA
employee be by their side; isn't that right?
Ms. Blommel. That is correct. A lot of people do come
forward. They come to the union because of concerns and we help
direct them to the right way to get that protection of concerns
of a veteran or a policy.
Mr. Takano. So, an arbitrary cap at fifty percent might end
up unresolved or whistleblowers may not have access to someone
who will stand by their side if they are needed?
Ms. Blommel. That is correct. We are very instrumental with
the staff. They come to us. A lot of times they will come to us
before going to management, because they have concerns and they
don't want their--to be known that they are coming forward. And
we just give them the support to go forward.
Mr. Takano. Well, thank you. My time is up.
Mr. Chairman, I yield back.
Mr. Arrington. Thank you, Mr. Takano.
And now, I will yield five minutes for questions to Mr.
Correa.
Mr. Correa. Thank you, Mr. Chairman. First of all I want to
thank you for bringing forward this piece of legislation. The
timing couldn't be better. As I was listening to testimony of
our witnesses I noticed Ms. Kimberly Perkins McLeod, our acting
Director, stated she supports the legislation, yet at the same
time she had some concerns regarding some definitional issues
and other issues in the bill. And I would say, Mr. Chairman,
that maybe this legislation might need a little bit of
wordsmithing and some work to make sure that what we mean and
what we say and what is written is actually consistent, so to
speak.
Again, the issues you are touching upon here I believe are
important ones, which are taking care of veterans and making
sure we have an efficiently run VA. And you want to make sure
that you reduce the possibility of unintended consequences.
Therefore, I would ask you to take heed to Ms. Perkins McLeod's
comments. And before we move the legislation forward I would
ask you to work with some of the witnesses to make sure that
this is some legislation that does exactly what you, Mr.
Chairman, intended to do. Thank you.
Mr. Arrington. Our Ranking Member of the VA Committee, Mr.
Walz, I yield to you for five minutes.
Mr. Walz. Thank you, Mr. Chairman. And thank you all for
being here. I think the first thing is that we are starting out
with the assumption that union time is something separate than
trying to improve the process for veteran care. That's not the
case. And I heard some of the things we are saying, well, if
you are lobbying on time. I would argue that Ms. Blommel is
here today lobbying. But this is helpful for us to get at the
heart of how we fix veterans' issues. So it is not always as
simple as it is made out to be.
And I would ask first to just look at this from this
perspective: we are here to serve veterans. And I am thinking
about this as a veteran. The Army and the taxpayers paid me to
shoot artillery. That was my job, that is what I should be
doing. If I were not shooting artillery, if you were not being
an LPN, was I not adding anything to the Army? So what ended up
happening was as I became more efficient at shooting artillery,
I ended up being a sergeant major. The management is the
officers and the colonel would give his directive.
My job was to go down to make sure all of the other folks
firing artillery were able to do it efficiently, safely and
accurately to fulfill their mission. For the last five years of
my career, although I was supposed to be the best artilleryman
in the unit, I never fired artillery. But I made sure all those
other people could do it. Without that ability, the colonel
would have to come down through the chain of command and go to
each of them.
And the reason this is an HR perspective is, is the people
that actually have to deliver it will sometimes tell you, sir,
with all due respect, this directive will not work and it
imperils our patients. So that flow of information back up that
is considered union time is trying to figure out better ways,
just like sergeant's time, to figure out how to make us more
efficient to deliver the care.
So the argument that we are making without the data that we
are instantly more efficient without having them there, I think
is specious at best. And as you said, you got asked, Ms.
McLeod, about how many people Ms. Blommel had. I realize that
that is not--and that question is asked just point out--and Mr.
Takano is exactly right, that you don't know in that case, nor
should you know. It is not to jam you up. It is the question of
even if they could say that she represents 1600 people and know
how many meetings she had, you are making an arbitrary decision
across the spectrum when wouldn't it be best for local
management and HR personnel and management to do that, Ms.
McLeod?
Ms. Perkins McLeod. Sir, I think there is an opportunity
here even with the legislation for managers to take a look at,
you know, what amount of official time is reasonable, necessary
and in the public's interest. I mean the limitations here are
with respect to certain occupations, but it does not completely
limit, you know, these individuals' ability to perform union
representational activities. And it is still the management and
the local manager's responsibility to make that decision.
Mr. Walz. What if we find out we need more official time?
Ms. Perkins McLeod. Sir, there is also--by the way, this is
written, there is certainly still an opportunity there to
provide additional official time to the extent it is
reasonable, necessary and in the public interest.
Mr. Walz. Ms. Blommel, do you keep track of your official
time?
Ms. Blommel. Yes, I do.
Mr. Walz. How do you do it?
Ms. Blommel. I do it--I have a paper copy that all of my
union people that have any time in the union, and we forward
that to HR at the end of the month, we do it monthly.Mr. Walz.
Ms. McLeod, what does VA do with that then? She kept track of
it, she wrote it down what she is doing. What do you do with
it?
Ms. Perkins McLeod. Each of those local HR offices, they
provide that information to my office on a yearly basis to
Labor Management Relations. And we provide that information
back to OPM when they make their data call to all the executive
branch agencies.
Mr. Walz. So it is collated. Whose fault is it if it is not
being kept, the idea that we don't know? Would you say it is
the employee's fault, was it Ms. Blommel's fault?
Ms. Perkins McLeod. Sir, we keep the information. Now, the
way that we have received it in the past has been through
different methods. But in large part we believe that most of
the information we have is pretty accurate. We are just going
to a new system that will ensure its accuracy.
Mr. Walz. Okay. Ms. Blommel, have you ever seen anybody
abuse official time?
Ms. Blommel. No.
Mr. Walz. What would you do if they did?
Ms. Blommel. I have--I am very rigid about official time. I
have had people that I have felt maybe might not have taken
their 30 minutes. I will talk to them, I will counsel them. And
I have also, with having--in regards to maybe if I think it is
inappropriate I will ask them to step down. I have no problem
doing that. This is a trust that we have and we have to honor
that.
Mr. Walz. Am I right that your father and your son are both
veterans?
Ms. Blommel. That is correct.
Mr. Walz. Do you feel like if they came to your hospital,
that you, in your current position, would be serving them well
with what you are doing or could you do it better elsewhere?
Ms. Blommel. They would come to our hospital. My father did
and my son is a current at St. Cloud VA.
Mr. Walz. And you in official time are improving their care
in your mind?
Ms. Blommel. Yes, I am, sir.
Mr. Walz. I yield back.
Mr. Arrington. Thank you, Mr. Ranking Member. And we will
go for round two here for anybody that would like to stay and
can stay. I am thinking as you are commenting on these
questions what it would be like if I brought you to a town hall
meeting in Big Spring where they have a large veteran
community, they have a VA hospital, and I introduced you as
somebody that was paid to be a nurse to provide care for our
veterans, but now you are spending 100 percent of your time on
union activities, then I would proceed to say, but wait a
minute, before you pick up the rocks, the law allows her to
spend some of her time as a VA tax paid employee on union
activity, but it has to be reasonable, it has to be necessary
and in the best interest of the public.
What would you say to that group of people if I brought you
with me to Big Spring next time I get out in the district about
why you do what you do and that it is justified as necessary
and reasonable?
Ms. Blommel. Well, I would love to go with you to Big
Spring and have that discussion at the town hall. First of
all--
Mr. Arrington. Can I hide behind the podium when I ask that
question?
Ms. Blommel. Sure. One of the reasons, you know, I would
really say to that crowd, and I have gone to town halls, is
that I am there for them. I may not be doing the hands on
directly, but indirectly I am making sure that they have the
best instruments, the best people doing the job. You know, I
can help make sure that we have the policies the way--
Mr. Arrington. Ma'am, how are you advocating for the
veterans to make sure they have the best people and the best
instruments?
Ms. Blommel. I was going to--I have the opportunities to go
to these meetings. An example, we have--
Mr. Arrington. You know what, I don't have a lot of time
here. So let me--what the veterans need is to see a doctor or a
nurse or a health care professional. They're waiting way too
long. I think if you ask the veterans they would say just let
me see a health care provider because I am sick. And I don't
know that they would say and I don't believe they would agree
that 100 percent of your time being spent when you are a health
care provider on union activity is reasonable, necessary and in
the best interest of the public. I don't believe that. I
haven't met one, not one, that says that. So how many
bargaining union employees are there at the VA roughly?
Ms. Perkins McLeod. Roughly 285,000.
Mr. Arrington. And it is my understanding that the bank of
hours is four hours per bargaining unit employee roughly; is
that correct?
Ms. Perkins McLeod. Roughly.
Mr. Arrington. So with all those employees, 285- bargaining
union employees, how can anybody--well, let me just ask the
questions, just yes or no, with 285,000 employees do you truly
believe, we will start over here and work our way across, do
you believe, Mr. Wilcox, that it is necessary for somebody to
spend 100 percent of their time, that they couldn't possibly
spread out 25 percent among the 285,000 employees; is that
necessary?
Mr. Wilcox. I would not say so, sir.
Mr. Arrington. Do you believe it is necessary?
Ms. Blommel. Yes, I do.
Mr. Arrington. Ms. McLeod?
Ms. Perkins McLeod. No.
Mr. Arrington. With 45,000 vacancies and the stories that
are more than disheartening, they are shameful, and the wait
times, and the lack of access to care that our veterans get,
are you telling me that somebody, especially somebody that is
in a health care provider position, working 100 percent of
their time on union activities is reasonable, in the best
interest of the public? In that scenario do you believe it is
reasonable and in the best interest of the public?
Mr. Wilcox. No, I wouldn't find that to be reasonable or in
the best interest of the public.
Mr. Arrington. Do you think it is reasonable and in the
best interest of the public with 45,000 vacancies, long wait
times and lack of access to care for our veterans that you are
spending 100 percent of your time on union activities?
Ms. Blommel. Yes, I do.
Mr. Arrington. You think it is reasonable?
Ms. Blommel. What I think is reasonable is that I am doing
it and we are not pulling different people from different areas
to do it and then we are disrupting care. I can tell you that
what I have just recently done in mental health is where they
came up with a policy where they wanted to remove two triage,
mental health triage, nurses and only use one, and use an LIP,
which is a licensed independent provider. But--
Mr. Arrington. I would feel more honest with the taxpayers
if we redefined your position and made you apply for a full-
time union advocate position than to do what we are doing here.
It just, it doesn't feel right. I am out of time so I am going
to yield now to Ranking Member O'Rourke for five minutes.
Mr. O'Rourke. Thank you, Mr. Chairman. I want to make sure
that we are being accurate with the words that we are using. To
be clear, official time is time that is spent improving the
quality and efficacy and timelines of care and services to
veteran. Union time or union activities are things that help
the union. And you can not use official time on behalf of the
union. And some folks on the Committee have used those two
phrases interchangeably. They are not the same.
I think we have to start with the fundamental question: is
official time valuable for veterans? If it is not, I say let us
do away with it now. Let us not even bother with counting it or
qualifying it or determining what percentage of which employees
can spend on official time. If it is not helpful, let us not do
it. But I think that employees who works for the VA agree that
official time is valuable.
And the VA itself brought forward examples of where
official time has improved the quality and timeliness and level
of care delivered to veterans. So for me that question is
settled. And there are--when we had our oversight hearing last
month there were other examples given. For example, mental
health care treatment regimens that because of the coordination
with AFGE they were able to add substance abuse counseling.
Having just visited Big Spring and where we have some El
Pasoians who are receiving treatment and seeing the great care
that they told me they were receiving themselves from those
bargaining unit employees I am convinced that there is value
and efficacy. But I, you know, to be intellectually honest I
want to make sure that I understand this from a fact based and
data based perspective. And because the VA has failed in
effectively measuring and reporting this back to Congress, we
are unable to do effective oversight.
And so I ask through Ms. McLeod that someone from the VA
who can answer this question and is in charge of this come
before this Subcommittee or the Full Committee to tell us why
they can not deliver this data to us sooner, like this summer,
instead of later, like next summer. I think that is issue
number one.
And issue number two, and I ask AFGE to come back to us
with a compelling answer, does it make sense at a time of
clinical shortages at the VA to have high demand providers have
100 percent of their time devoted to official time. The answer
may be yes. You made a great case from the perspective of the
St. Cloud VA management that they did not want to talk to
someone 10 percent of the time and another person 13 percent of
the time. They wanted to be able to go to you 100 percent of
the time and that ensure that they are more effective in
delivering high quality timely care to veterans.
And if AFGE can make a compelling case that it should in
some cases be a physician who does that, then make that case to
us. I want to start and end with what is best for veterans. And
if you convince me that official time, 100 percent of official
time in some cases and 100 percent of the official time of a
practicing physician is in the best interest of veterans, I am
going to go to the mat for official time under those
circumstances. If you can not, then I am going to be more open
to changes to the system that we have today.
So I think that is what we are all looking for as Members
of the Committee. But I would caution my colleagues in rushing
to any judgment or in passing a bill that even the VA, at least
the representative from the VA today, cannot defend. Even
though you say you support it, you also acknowledge that in the
case of St. Cloud and in other areas management has found value
in 100 percent of time. And yet the VA's position is that they
support the Chairman's 50 percent cap. Those two things do not
add up. And so we need to talk to someone or hear from someone
who can make the case to us or support either one of those.
So I still need some more information, Mr. Chairman, before
I think I can make an informed decision on this bill. But I
appreciate your effort in writing it and trying to address an
issue that is of importance to the Committee. And with that, I
yield back.
Mr. Arrington. Thank you, Mr. Ranking Member. Very good
remarks. And I am now going to yield to Mr. Rutherford. Five
minutes in addition for questions.
Mr. Rutherford. Thank you, Mr. Chairman. I would propose to
the Committee and the panel that the evidence that official
time has failed in its stated mission of making things better
at the VA it is the case before us, it is why we are here, is
because official time and its purpose has failed as in this
written documentation by Mr. Wilcox is so eloquently put.
Official time has failed the VA. It is failing our veterans
every day. Because if your job through official time has been
to make it better for our veterans, they have failed. Official
time is not working, Mr. Chairman. It is evidenced by wait
lines. It is evidenced by lack of service to our veterans who
have earned that care.
Official time has failed. The evidence is all through this
testimony. We have seen it at our VA facilities. We hear it
from our veterans. Official time has failed. I don't need
anymore information. I can look at the history of the VA to see
that this has failed. And so, Mr. Chairman, I think the bill is
absolutely necessary.
Now, I don't put all the blame on the VA or the union even.
The Federal Labor Relations Authority, if they are making
decisions about who can be a union representative outside of
the law, which is what I heard--I hear one person tell me there
is no language that I am going to be able to find that
restricts those categories of employees that can or cannot be
union representatives, but then I am told that they make this
decision that we can't restrict them--Mr. Chairman, I think we
pass this legislation and make the Federal Labor Relations
Authority adhere to it.
But make no mistake about it, official union time has
failed in its mission because you sat there and said many times
that the mission is to make it better at the VA. And it simply
has not happened. And so I think we need to find a way to make
it better, to get these classes of people particularly is what
I am concerned about. When you have individuals, and Mr. Wilcox
pointed out several of these cases, they are supposed to be
providing services to veterans and they are not seeing a single
patient. Not one. That is just not acceptable, Mr. Chairman. I
yield back my time.
Mr. Arrington. Thank you, Mr. Rutherford. I now yield five
minutes again to Ranking Member, Mr. Walz.
Mr. Walz. Thank you, Mr. Chairman. In the most recent VFW
poll of veterans who use the VA facilities they have a 92
percent satisfaction rate. Cause and effect is always a very
difficult thing to try and prove. There is other parts of this
equation like management and oversight. But I will go to this,
Mr. Wilcox, have you ever worked in the VA?
Mr. Wilcox. I have not worked for the VA; I have worked
within the confines of the VA to meet with veterans and legal
counsel and work with staff there on mental health issues.
Mr. Walz. Are you a veteran?
Mr. Wilcox. No, they wouldn't take me.
Mr. Walz. Have you ever been in a union?
Mr. Wilcox. No, sir.
Mr. Walz. All right. Is this correct that your institution
recommended granting emergency managers state of emergency
power in the State of Michigan to override elected officials to
toss out union contracts? Is that a position advocated by your
organization?
Mr. Wilcox. We did advocate for the emergency manager law.
And as general oversight of the failing municipality, he did
have that authority.
Mr. Walz. Would you recommend that for the VA?
Mr. Wilcox. If there is a serious enough situation that it
warrants a takeover by governing officials, it would seem to be
a possibility. But it is not something obviously I have thought
about before.
Mr. Walz. Are you publically funded?
Mr. Wilcox. Publicly funded?
Mr. Walz. Yeah.
Mr. Wilcox. No, sir.
Mr. Walz. Privately funded?
Mr. Wilcox. Privately funded.
Mr. Walz. Okay. Ms. Blommel, how many people do you say you
represent in your bargaining units?
Ms. Blommel. We have over 1600 bargaining members.
Mr. Walz. How many people are on official time, 100 percent
official time?
Ms. Blommel. At the St. Cloud VA?
Mr. Walz. Yes.
Ms. Blommel. I have two.
Mr. Walz. So there's two of you.
Ms. Blommel. Yes.
Mr. Walz. How long will you do that? How did you get this
position, if I could ask?
Ms. Blommel. I was elected to this position two years ago
and I have one year left in my term by the bargaining members.
Mr. Walz. Okay. So your peers and the folks who work there,
nurses, those combat veterans who work down there, they said we
want you to go speak to management for us?
Ms. Blommel. That is correct.
Mr. Walz. Do you believe they asked you to do that to
improve their own personal lives or enrich themselves or why do
you think they wanted you to do that?
Ms. Blommel. Because they felt that I had integrity. They
felt that I would do the right thing and I would stand up,
listen to them when they had concerns and do the right thing.
Mr. Walz. What will happen when your term is up?
Ms. Blommel. What will happen? There is either two things.
Either I will be reelected to be the union president or I will
go back and be a nurse on the floor.
Mr. Walz. And either way in your mind you are serving
veterans--
Ms. Blommel. Yes, I am.
Mr. Walz [continued]. --to the best of your ability?
Ms. Blommel. I am serving them either way.
Mr. Walz. Okay. So I would ask all of us this, there is two
people representing 1600 working with management at the St.
Cloud VA. Had a management issue at the St. Cloud VA, had
whistle blower situations. By the way, the St. Cloud VA is
rated the highest in the VA system. Am I correct in that, in
the star ratings?
Ms. Blommel. That is correct, we are five star.
Mr. Walz. Okay. Would you say your institution is failing?
Ms. Blommel. We are--our employees work very hard, so no,
we are not failing.
Mr. Walz. And I notice you hesitated on that. Is that
because if you feel if one veteran is not served, then you
consider that personal failure?
Ms. Blommel. If a veteran is not served, yes, that is a
failure.
Mr. Walz. Okay. But the data shows that, again, from the
VFW on systemwide, St. Cloud even higher than that, because we
have had that polled after Mr. Emmer and I were up there, a
very high satisfaction rate with what is happening there. You
have new management. How is that working?
Ms. Blommel. We have new management, it came over this
summer. And we have a new director that will be coming aboard
April 2nd. All of the staff are very excited. And as you know,
we have over 409 of our employees who are veterans there and
they are excited about that too.
Mr. Walz. How long was the director position open before it
was filled?
Ms. Blommel. The past director left July 1st and Mr. Black
was just recently announced last week.
Mr. Walz. Nine months then?
Ms. Blommel. Yes.
Mr. Walz. Which is spectacularly fast in the VA HR system,
I might add. Okay. I would just ask, and Mr. Chairman, I don't
disagree with you on this that we need to know these answers.
And if we cannot provide the data, you are absolutely right to
ask those questions. But I would end with too, I would hope
when you took Ms. Blommel to that town hall, you would also
introduce her as the daughter and a mother of a veteran. And as
someone who is serving in the VA, she could take those skills
elsewhere. And I am not disagreeing. Again, if anybody is
abusing this, then we need to crack heads. But I think the
assumption--how would each of us if each day we had a different
chief of staff giving us advice going back and forth? So you
can take 100 percent. I think you maybe ought to have the
argument on this. If you are going to say we should have four
at twenty-five, what is the difference in that? You are making
the assumption then that this one person is going to just by
going back in there--my example before was I never fired
artillery, but I helped our unit fire artillery. So I just ask
us to think about that. I don't disagree with wanting to get
the data. But I do think assuming that union time is not
performed--helping veterans is a pretty big leap. I yield back.
Mr. Arrington. Thank you, Mr. Ranking Member. And now we
will yield to Dr. Wendstrup for five minutes of questions.
Mr. Wenstrup. Yeah, thank you, Mr. Chairman. I apologize
for getting here late. And so forgive me in some of my
questioning. But just trying to get a picture of like what your
day is like. You know, what do you do? You know, the union
activity, is it taking care of veterans, are you helping people
take care of veterans? You mentioned, for example, making sure
instruments are there. Did I hear you correctly?
Ms. Blommel. That is correct.
Mr. Wenstrup. As a surgeon, that is a pretty important
thing, making sure the instruments are there--
Ms. Blommel. Yes, it is sir.
Mr. Wenstrup [continued]. --right, before you go and do
your surgery. But, you know, in our hospital that is somebody's
job. It is somebody's job. So you are saying if you are not
there, the instruments may not be there?
Ms. Blommel. What I am saying is sometimes we have to
look--we look at the instrument set, are there--because maybe
they are not as efficient or they have caused an injury to an
employee.
Mr. Wenstrup. So are you really a supervisor, are you a
hospital supervisor--
Ms. Blommel. No, sir.
Mr. Wenstrup [continued]. --to try and make sure? That is
what I am trying to figure out because, you know, people have a
job, they have a responsibility. Their responsibility is to
make sure, for example, that the instruments are there as
requested, as needed for the case, and they deliver it. There
is no one else involved with that necessarily, unless there is
a repeated problem. So I don't understand. So are you there to
make sure that someone in the union is doing their job
correctly? I don't get it. I don't understand why--and you used
that as an example, and that is why I went to that.
Ms. Blommel. Sure.
Mr. Wenstrup. Because in our hospitals there is a person
responsible for having the instruments there.
Ms. Blommel. Yes. That someone is [indiscernible].
Mr. Wenstrup. And there isn't someone 100 percent of the
time trying to make sure that the instruments are there because
that is somebody else's job. So I don't--are you there just for
people who are not doing their job or is that your job? Do you
put the instruments together, do you deliver the instrument
pack to the OR? Just help me here.
Ms. Blommel. No, I don't. What I do is I make sure that--
because our physicians are bargaining union, you know, could be
union or bargaining members--what I do is make sure they have
the right instruments to help and take care of our veterans.
And sometimes when we have an instrument that maybe is not as
effective or if there was an injury, I make sure we get the
right stuff. I get asked for opinion, or the employee will come
to me and say, you know, this isn't working. And I will go to
management and we will sit down and we will have a conversation
about what is the best and we get to look at it. And, no, I am
not--
Mr. Wenstrup. So it takes an interim person to do that?
Ms. Blommel. Not all the time, sir.
Mr. Wenstrup. You mean the surgeon can't say, hey, this
instrument is broken, I need--
Ms. Blommel. They do.
Mr. Wenstrup [continued]. --a new one? You know, can we put
in for that, can I get that? They need another person? I am
just trying to figure out why you need to be part of that
process. It seems to me that we are adding an extra step. I
don't know, I just--it is not very clear to me why you need to
be in that role necessarily if people are doing their job. And
if there is a problem that they can handle it without having to
go running to someone else and say, hey, we need a new
instrument, can you be my voice? That person, it is their job.
I just don't see that in other situations where that is taking
place in private sectors. So it is just kind of confusing to me
in that regards.
But I appreciate that you are there and you are trying to
make sure that things get done. But it sounds to me like you
are there in case someone isn't doing their job, because I
shudder to think that if you weren't there one day that they'd
have to cancel a surgery or something like that because you
weren't there, because it is already somebody else's job to get
that done. And with that, I yield back. Thank you.
Mr. Arrington. Thank you, Dr. Wenstrup. I am just going to
ask if anybody else has any further questions or comments. I
wanted to say again thank you to the panelists and appreciate
your time and your thoughtful responses to our questions. You
know, I am new to the Committee and I have tried to listen and
observe more than opine. But there is this theme whether it is
the IT, the first hearing we had on IT systems and millions of
dollars in waste because of mismanagement there, or it is the
Choice Act, or it is tracking union time, to me the heart of
the problem at the VA is a lack of accountability and the
inability to manage the VA effectively, because I think one
could argue we have thrown billions and billions of dollars,
and in my opinion some good money after bad, because of a
dysfunctional culture and system. And it is not dysfunctional
people.
I think you are a well-intended good hearted person. And I
haven't met a VA employee yet that I don't think is a fine
American and who deep down wants to serve veterans. But it is--
there is nobody who would run their business or run their non-
profit the way the VA runs their business. And there is, in my
opinion, there is no way to have the culture and the lack of
accountability and be able to provide excellent service to your
customer, in this case the VA.
And like my friend and colleague, Mr. Rutherford, I don't
need any more evidence to know that somebody spending 100
percent of their time on union activity when you have 45,000
vacancies and these awful wait lines and the lack of access to
care, there is just no way somebody can convince me that that
is reasonable and in the best interest of the taxpayer, let
alone the veteran.
We all want to serve our veterans. We all on this Committee
want them to receive the best care. I suspect also that
everybody on the panel does. And we all know they deserve
nothing less. I introduced this bill so that more individuals
were focusing on this goal and focusing on the jobs that they
were hired to do, as well as to bring greater transparency for
the American taxpayer about where their tax dollars are going,
especially if the money is being used for union activities as
opposed to paying for someone to do the job, again the job that
they were hired to do.
I look forward to continuing--to continue working with all
stakeholders involved and my colleagues on this legislation
going forward. And I now ask unanimous consent that the
statement submitted by Mr. J. David Cox, National President of
AFGE, be submitted into the record.
Hearing no objection so ordered.
Finally, I now ask unanimous consent that all Members have
five legislative days in which to revise and extend their
remarks and include any extraneous material on today's hearing.
Without objection so ordered.
Thank you all again for being here today. This hearing is
now adjourned.
[Whereupon, at 3:21 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Kimberly Perkins McLeod
Good afternoon, Mr. Chairman, Ranking Member O'Rourke, and other
Members of the Subcommittee. Thank you for the opportunity to discuss
H.R. 1461, entitled the ``Veterans, Employees, and Taxpayers Protection
Act of 2017,'' which pertains, in significant part, to the use of
official time and probationary employees. I am accompanied today by
Rondy Waye, Human Resources Policy Advisor in VA's Office of Human
Resources and Management.
VA generally supports H.R. 1461, but we do have a few concerns with
the legislation which we have noted below. We note that H.R. 1293, a
bill with Government-wide applicability, includes similar requirements
- but, under different tracking and reporting deadlines, which will
likely be problematic from an implementation perspective.
With regard to section 2 of the legislation, which would insert a
new section 741 in Title 38 of the United States Code (U.S.C.), the
inclusion of this recordkeeping requirement will result in increased
administrative responsibilities and obligations for VA. In addition, an
October 1st deadline for a report covering the most recently ended
fiscal year will present insurmountable challenges, especially in light
of the Department's current system for tracking the information. The
Department recommends a reporting date of March 1 following the period
covering the most recently ended fiscal year. The Department currently
has the ability to electronically track union official time for
employees in the VA Time and Attendance System (VATAS), and is in the
process of fully implementing this system, with a projected completion
date of July 2018. Using VATAS, the Department can now track the
categories of official time in accordance with the Office of Personnel
Management's (OPM) four categories: 1) term negotiations; 2) mid-term
negotiations; 3) general labor-management relations; and 4) dispute
resolution, similar to the way all other agencies track official time
across the Federal Government. However, section 741 would require the
capture of additional information regarding official time, which would
require a revision to VATAS, as well as the use of a secondary system,
HR Smart, to capture the monetary aspects of the bill. Section 741 also
calls for the collection and analysis of subjective data, requiring VA
to determine the impact that granted official time has on its
operations. Overall, to maintain the tracking and reporting of this
administrative data to the level of granularity required in this bill,
VA would be required to add additional FTE in administrative support.
To reduce administrative and cost burden, we ask that the Committee
reconsider some of the granular reporting requirements in the bill, and
would like to work with the Committee to alleviate these concerns while
achieving the important objective of increased transparency.
With respect to section 742, which would be inserted in Title 38
under the legislation, VA does not oppose the time limitations
established in the legislation. VA finds certain union lobbying efforts
on behalf of VA beneficial to VA's stakeholders - the Veterans. Indeed,
Veterans have benefitted from union lobbying efforts in areas such as
expansion of scopes of practice for nurses and pay and hiring
flexibilities to provide expedited patient care.
The Department is also generally in favor of the types of
limitations on the use of official time for certain individuals set out
in section 742. We would prefer that doctors spend all their work time
caring for Veterans. In addition, we think it is important for every
employee to spend at least half of their work time performing
management-directed tasks. Currently, however, the Federal Service
Labor-Management Relations Statute does not allow us to limit official
time to particular employees or classes of employees. Although we can
negotiate overall use of official time, we cannot prohibit doctors from
using official time or restrict registered nurses to no more than 25
percent official time. If this bill passes Congress and becomes law, VA
will have that capability.
VA also notes that, unless otherwise superseded by section 742, the
provisions in 5 U.S.C. 7131(a) continue to apply to certain
mandatory official time. To the extent the intent is to supersede that
provision, VA recommends clarifying language in section 742. VA will be
happy to work with the Committee on this language.
VA does not have a position with regard to section 743, which would
be inserted in Title 38 under the legislation. However, VA proposes
that the bill include clarifying language regarding what
``termination'' means in the context of the bill. VA recommends that
the term ``termination'' be clarified to mean the submission of an
employee's SF-1188 to his or her servicing HR or payroll office.
With regard to section 3 of the legislation, which would insert a
new section 719 in Title 38, VA does not oppose this provision.
However, we note that expanding the probationary period for all covered
employees may have the unintended effect of dissuading candidates,
including Veterans, from seeking employment with VA. In addition there
would be three different probationary periods depending on the type of
appointment for VA employees (12 months, 18 months and 24 months) which
will likely lead to misapplication and confusion on the part of
employees and managers. Moreover, under 5 U.S.C. 7511,
certain VA probationary employees are already entitled to appeal a
separation action to the Merit Systems Protection Board if they have
worked for the Federal Government for more than 12 months. The 18 month
probationary period prescribed by this bill will not change this right.
Consequently, to the extent that the intent is to curtail appeal rights
during the probationary period, relevant changes should also be made to
5 U.S.C. 7511. VA will be happy to work with the Committee on
this language.
Mr. Chairman, this concludes my statement. VA looks forward to
working with the Committee to provide technical guidance on those
elements that we have noted may be of concern. I am happy to answer
your questions.
Prepared Statement of Shirley Parker Blommel
Chairman Arrington, Ranking Member O'Rourke and Members of the
Subcommittee:
Thank you for the opportunity to share the views of Local 390 of
the American Federation of Government Employees, AFL-CIO (AFGE). Local
390 represents 1,642 bargaining unit (BU) employees working as medical
professional and support personnel at the St. Cloud, Minnesota VA
Health Care System (St. Cloud VA), a quarter of whom are veterans.
I came to work at the St. Cloud VA as a licensed practical nurse
(LPN) in 2008, after working at several different private practices in
rural and urban areas, including a maternity ward, urology practice and
community based nursing home. At the VA, I started out in the nursing
home and then I worked in primary care and the residential
rehabilitation treatment program (RRTP). I worked in primary care until
2014 when I began working full time as a union representative.
I was elected vice president of Local 390 in 2012, and I have
served as president of my local since 2014. Our bargaining unit covers
a wide range of positions at the St. Cloud VA Main Campus and Brainerd,
Alexandria and Montevideo community outpatient clinics (CBOC).
After one year at the St. Cloud VA for one year as a nurse working
on the floor, I signed up to be a union member, went to meetings and
learned I could make a difference. Also, my dad was infantry in the
Army and I wanted to give back for all he sacrificed. I realized that
by getting involved in the union, I could help front line employees and
learn how to work collaboratively with management to improve the
veteran experience.
Personally, it's taken on something more for me now because my son
is a veteran. I've taken more of a personal ownership of what I do.
Being a local officer has been a very fulfilling experience and has
taught me a great deal, especially that labor-management relations are
not about I'm right and they're wrong but rather that we have different
perspectives but a shared goal of wanting to improve care. When the
union and management work collaboratively, we can move toward the same
positive outcome.
As a local officer, I have the opportunity to make sure employees
are getting proper training and that the workplace is safe. Our members
all want to provide the best care to veterans, but they cannot do this
without adequate training and a safe working environment.
I come before this Subcommittee today at the request of my
Representative, Congressman Walz, and I am here to talk about how I try
to address problems at my facility using official time. I must confess
that I am concerned about retaliation from management when I go back
because over the last two years, the environment at St. Cloud became
very hostile. In 2015, veterans using the St. Cloud VA went to the
media to complain about a lack of providers and increased primary care
panels. Congressmen Walz and Emmer came our facility and spoke with BU
employees and got us some help. The Federal Mediation and Conciliation
Service conducted a five-day mediation and we also got a visit from
former VA Secretary McDonald. The outcome of this process was that the
medical center director retired and we now have new leadership at our
facility.
There are many other examples of how I have used official time to
keep the St. Cloud VA workforce strong, make the work environment safer
and collaborate with management carry out the agency's mission and take
great care of veterans at our facility.
For example, Occupational Safety and Health (OSHA) inspectors came
to our facility in 2013 and found a long list of violations. They spent
20 days at our facility. After correcting the violations, medical
center leadership and I went to their district office to review the
charges and make sure staff had correct training.
On a frequent basis, I represent housekeepers in their disputes
with their supervisors. All of our housekeepers are combat veterans and
they play a critical role in patient safety by keeping operating rooms
and other areas free of infection. Many of these veterans suffer from
anxiety, substance abuse, PTSD or other mental health issues. When a
combat veteran in the bargaining unit has to take leave to get care at
a VA treatment center, supervisors sometimes give them a very hard time
when they return and the veterans end up feeling stigmatized and
targeted. Instead of the supervisor saying, ``Good for you, I am glad
you got treatment'', they often harass them for being low on sick
leave, even though the veteran sought treatment for a condition he
acquired in the military.
When these veterans come to the union for help, we explain their
rights under the Family Medical Leave Act and we reach out to
management to smooth out tensions and ask for greater understanding
from management.
I frequently have conversations with employees because they are
feeling intimidated and bullied by some of the comments made by
managers. We ask the employees about problems such as how schedules are
changed without notifying the employee, which then leads to management
charging them with AWOL for not showing up for the new shift. As a
union official, I have been able to resolve these types of
misunderstandings informally at an early stage.
The union plays an essential role in addressing other arbitrary
management actions that create unnecessary conflicts that interfere
with the agency mission. I assisted a food service worker who prepares
meals for veterans. He is an excellent employee who would not hurt a
flea and greets everyone he sees and never had any trouble on the job.
Then one day, as a favor to a coworker who could not attend the morning
huddle, he shared management's guidelines for the day with the team.
When the service line director showed up, she chastised him for not
speaking loudly enough. He tried to explain that his throat was
bothering him. She issued a reprimand anyway. We challenged the
reprimand and instead of it staying in his file for three years, the
union was able to get it removed after three months.
I represented another food service worker who was the target of
manager accusations because she had a medical notification related to
her inability to work extra shifts because of a back injury. The
manager went around and talked to everyone about her medical condition,
which Intimidated the employee a great deal. I was able to talk with
the manager about the employee's rights and needs. As a result, the
manager stopped harassing her and the employee continues to be a
productive employee to this day.
When I first became the union vice president, I was only on 50%
official time. As the need increased for us to be present, management
frequently asked me to come in on a day off from my RRPT duties. After
I became president of the local, it became clear that management's
expectation was that the president would be working only administrative
hours. Management likes the continuity of having me work 100% official
time. I need to be there when management calls a meeting, or schedules
grievances under the required timeframes. If I am to be effective, my
availability has to overlap management's availability. In addition, the
local needs official time so that management can send shop stewards to
the many training classes that are scheduled on health and safety and
other matters.
In addition, to representation of individual employees, my regular
duties as union president including:
Attending monthly meetings called by management including
director meetings, meetings with nurse executives and staff meetings,
Meeting with service lines to talk about existing and new
policies,
Meeting with management to discuss policy changes and how
it will impact working conditions, and how we can work in a
collaborative manner to improve veteran care,
Discussing new directives from VA Central Office and how
they will impact work flow; then I go to the employees to ask about the
workflow and how can we do it better and share this information with
management,
Resolving disagreements between employees, and
Mentoring new employees.
If H.R. 1461 were to become law, I would only have 25% official
time. This would have an adverse impact on the veterans as well as the
employees at St. Cloud. I need to time to address the many new
directives that come down from the Veterans Health Administration. I
would not have enough time to sit down and work things out with
management and determine how to implement the new requirements.
For example, just recently, a new directive on the Query State
Prescription Drug Monitoring Program came out. This has a big impact on
working conditions; providers will have to start a query when veterans
get narcotics or changes in prescription. The union has to work with
management to determine which positions are best suited to assist with
the queries. Also, we need to work together to make sure our providers
understand who should be delegate exactly and make sure all our Is are
dotted and our Ts are crossed.
Duty time was also essential to implement another recent directive
on how to upgrade urgent care to an emergency department (ED). It is a
complex directive and there are many new requirements that must be met,
including inpatient beds and having social workers available on call.
I have no problem providing medical care to my veterans. But I also
think that my duties as a union official are also very important for
taking care of veterans.
I also want to state that I am a very good steward of the use of
official time at my local time. I make sure that shop stewards on
official time only take 30 minute breaks. If they go over, I have a
conversation with them. I am a work horse myself and I work very hard
and I expect the other local officers to do the same. I have asked some
shop stewards to step down because I insist on proper use of official
time. There is zero abuse of official time at my local; we are using
less than allowed under the contract at the present time.
H.R. 1461 would also prohibit me from lobbying. I am here today on
duty time. I used duty time two years ago to work with Congressmen Walz
and Emmer on the staffing problems already discussed, including meeting
with the Congressmen`s DC staff who came to St. Cloud, and to conduct a
meeting between the lawmakers and the BU employees.
I am also very concerned about two other provisions of this bill
and how they would impact the union's ability to work with management
to carry out the agency's mission. If members could drop their union
dues deductions at any time, instead of the current one year
commitment, it would be a financial diaster to our local. These dues
are essential to paying for member training, and arbitration fees,
among other needs.
Finally, I think a longer probationary period is unnecessary and
would be harmful, especially to the many veterans among our new hires.
A good manager knows within six months whether an employee is good
enough to stay on after probation. I can recall a case involving
another LPN who was on probation and management promised to provide
training to improve his performance. Instead, management just said
goodbye without keeping its commitment on the training, right after
forcing him to cover a holiday weekend.
Thank you for the opportunity to share the views of AFGE Local 390
on H.R. 1461.
Prepared Statement of Derk A. Wilcox
Introduction
Chairman Arrington, Ranking Member Walz, and Members of the
Committee, thank you for holding this hearing and giving me an
opportunity to discuss the issue of the use of ``Official Time'' at the
Department of Veterans Affairs.
My name is Derk Wilcox, and I am the Senior Attorney at the
Mackinac Center for Public Policy. The Mackinac Center is a is a
nonpartisan research and educational institute dedicated to improving
the quality of life of people in its home state of Michigan and
nationwide by promoting sound solutions to public policy questions.
I'd like to note that as a practicing attorney I have had the honor
of representing many veterans as their court-appointed counsel in
mental health, guardianship, and conservatorship hearings. I have spent
many hours at the VA facility in Ann Arbor working with the staff and
the veterans there.
VA Hospitals are beset with many problems as they try to meet the
needs of our veterans. Official Time has added to those problems.
Official Time is the practice of releasing employees to perform union
functions while they are paid by the government agency - Veterans'
Affairs, in this instance.
H.R. 1461 is a much needed first step requiring tracking and
reporting the use of Official Time, and that is what I am here to
testify about today.
History
This bill is not the first effort to track Official Time. Back in
1979 the General Accounting Office (GAO) found that 18 of 26 bargaining
units at four agencies had no record of Official Time usage, and
recommended that the Office of Personnel Management (OPM) issue annual
reports on its use. \1\
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\1\ Office of Personnel Management Summary Report: Official time
for Representational Activities Fiscal Year 2002. https://
www.chcoc.gov/content/official-time-union-related-activities
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Through the Federal Personnel Manual, OPM directed agencies to
develop a record keeping system. \2\ However, the Federal Personnel
Manual was discontinued in 1994, along with any requirements for
tracking Official Time.
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\2\ Federal Personnel Manual letter 711-161
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Since then, agencies have been subject to different requirements by
differing administrations. Hence, the need for legislation to create a
standardized database which will assist effective personnel management
at the VA.
Official Time has been misreported and underreported
OPM currently reports sporadically on limited aspects of Official
Time. In the Fiscal Year 2012, the last year for which estimates
appear, OPM estimated that Official Time cost the VA $46,868,149.40.
This cost represented 253,691 employees performing 1,086,257 total
hours. This was up over $4 million from the previous year, when it was
estimated to be $42,565,000.79. \3\ There does not appear to be
published estimates from OPM for the last five years.
---------------------------------------------------------------------------
\3\ United States 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-relationsin-the-executive-branch-2014.pdf
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But even these costs are merely estimates. As pointed out in the
February 16, 2017 testimony before this subcommittee by William
``Trey'' Lawrence Kovacs III of the Competitive Enterprise Institute,
these estimated costs fall short of the true costs because these fail
to account for the use of office space, phones, and travel by employees
using Official Time. \4\
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\4\ William Lawrence Kovacs, III, ``The Use of Official Time for
Union Activities at the Department of Veterans Affairs: Testimony
before Subcommittee on Economic Opportunity and Subcommittee on
Government Operations,'' February 16, 2017. https://
oversight.house.gov/wp-content/uploads/2017/02/kovacs.pdf
---------------------------------------------------------------------------
The GAO report from 2014 criticized the OPM's method of accounting
for Official Time. The GAO found that using a more sound method of
accounting resulted in higher Official Time costs at four of the six
agencies it examined. The estimates by the GAO were 15% higher than the
OPM estimates because they changed the methodology of determining the
amount of salaries devoted to Official Time. \5\
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\5\ 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
---------------------------------------------------------------------------
But what the GAO did not look at is whether or not the official
timekeeping itself is flawed. From my investigations, it appears that
the use of Official Time is underreported. I examined cases brought
before both the Department of Labor's Employees' Compensation Appeals
Board (ECAB) and the Federal Labor Relations Authority (FLRA). These
cases involved the use of Official Time by VA employees, and Official
Time was a central part of the case. In so doing I found several cases
where more time was devoted to the union's activities than was being
reported as Official Time.
In a case out of the Dayton, Ohio VA Medical Center, a patient
services assistant petitioned for workers' compensation after she was
injured while performing a union function. \6\ She initially claimed
that she had been on Official Time when the injury occurred. But an
investigation into the facts found that she had been performing a
union-related function during her regular work time - not on approved
Official Time. She was a union steward, and chose to attend an
appraisal meeting where her presence was not required. She had been
granted Official Time usage during the morning, but not during the
afternoon when her injury occurred.
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\6\ Simpson, ECAB Docket No. 04-1809, 57 ECAB 197 (2005).
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In another ECAB claim, this one out of the Philadelphia VA Medical
Center, a medical supply assistant was injured while travelling to
attend a union meeting. \7\ Again, the Board found ``Appellant's
supervisor and appellant both note that based on her union position she
was entitled to use up to four hours a day of official time. However,
both agree that her time sheet did not reflect that she was on official
time at the time of injury and that appellant was in a regular duty
status when her injury occurred.'' Again, the official time keeping did
not reflect that she was performing the union's work.
---------------------------------------------------------------------------
\7\ K.L. and Dept. of Veterans Affairs, Docket No. 06-2154, 2007 WL
1227942
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Perhaps most egregious was a FLRA case out of the Medical Center at
Leeds, Massachusetts. \8\ A clinical neuro-psychologist was also the
union president. She was allowed to spend 60 percent of her workweek on
Official Time. However, an arbitrator found that, because of her
Official Time, it was an unfair labor practice to require her, as part
of her performance appraisal plan, to see any patients per week.
Because ``official union duties placed time constraints on the
grievant's clinical schedule during the workweek'' it was ``unfair'' to
require her to see as few as one patient for testing per week. In
short, what was recorded as 60 percent Official Time effectively became
100 percent Official Time. Furthermore, she was exempt from the
procedures for scheduling patient ``consults.'' i.e., she was not
required to participate in ``requests from physicians or others that a
veteran be seen for psych[iatric] or neuro-psych[chiatric]
evaluation.'' Although the time sheets would not show it, Official Time
kept this neuro-psychologist from seeing any patients as a requirement
of her employment.
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\8\ NAGE Local R1-274, 68 FLRA No. 160 (2015)
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In 2013 Senator Rob Portman (R-OH) and Tom Coburn (R-OK) wrote to
the then-Secretary of Veterans Affairs, Eric Shinseki, noting that:
``Documents show that your department recently employed at least 85 VA
nurses, some with six-figure salaries, who were in 100 percent official
time \9\status.'' \10\ Yet as the cases I have cited show, there are
others, perhaps many, whose Official Time usage exceeds their allotment
and who are effectively on 100 percent Official Time despite being on
record as only devoting 60 percent to Official Time.
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\9\ ``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/pressreleases?ID=6bbed8f6-35c2-49e3-a0fb-fd10a0089f04
\10\ In another FLRA case out of the Dayton, Ohio VA, a woman was
hired as a prosthetics representative. But on becoming union president,
she spent 14 years on 100 percent official time. She then filed a
grievance and won when the Agency did not consider those 14 years of
union business to be equivalent to advancement in the prosthetics
field. AFGE Local 2209, 65 FLRA No. 206 (2011).
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So while the OPM found that in VA employees spent 1,086,257 hours
on Official Time, based on the cases I have cited, there is ample
reason to believe that hours reported to the OPM are undercounted.
One of the common responses to the use of Official Time for union-
related business is that the unions are required to represent all
bargaining unit members, both dues paying members and non-members. And
that this universal representation requirement imposes an unfair burden
on the unions in their representational activities. However, according
to the VA, the union which represents most VA employees is the
Government Employees AFGE AFL-CIO. \11\
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\11\ https://www.va.gov/LMR/laborunions.asp
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In FY 2015 Government Employees AFGE AFL-CIO National Headquarters
reported receipts of $134,852,702 on its LM-2 disclosure forms. (This
number does not include the locals.) It would not be unreasonable to
expect the AFGE and other unions to bear the costs of their own
activities rather than shifting these costs to taxpayers and
shortchanging the veterans who are supposed to be served by the VA
employees who are instead on Official Time. If the burden of
representing non-union members in the bargaining unit is too great,
than perhaps the unions should be relieved of that requirement in
exchange for non-union-member employees being allowed to represent
themselves, a.k.a., ``Workers' Choice.'' \12\
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\12\ http://www.mackinac.org/22471
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The enactment of H.R. 1461 could provide the necessary tool to
properly count the hours and total cost of Official Time at the VA.
Likewise, it would restrict Official Time activities so that physicians
like the psychiatrist in the case above at the Leeds facility are using
their skills and expertise on the treatment for which they were trained
and hired, and not for union activities. Section 741(a)'s requirement
that time be accounted for ``accurately and to a specific degree''
should eliminate the case of duty time being used for union activities,
as the aforementioned cases found. Section 741(2)(E) and (F) should
correct the flaws pointed out in the February 16, 2017 CEI testimony
before this body, which pointed out that Official Time was not
accounting for fringe benefits, office space, or other facilities used
for Official Time. Section 742(a) correctly restricts Official Time
from being used for ``political activities or activities related to
lobbying.'' As noted above, the unions representing VA employees have
annual revenues of well over $100 million - under no circumstances
should taxpayers be required to fund political activities on their
behalf. Lastly, and perhaps most importantly, Section 742(b) is a
necessary correction prohibiting physicians and other highly-skilled
medical professionals from using Official Time when their unique skills
and training should be used to treat our veterans.
Summary
In summary, when cases have been looked at in-depth, it has been
frequently shown that employees have been using more time for union
activities than has been allocated to them as Official Time. H.R. 1461
would appear to be a necessary first step to properly track how much
time VA employees spend on Official Time, account for the true costs,
and restrict the improper uses of Official Time. Following the
enactment of H.R. 1461, we should get a more complete picture of the
extent of the problem, and better enable managers to effectively use
the resources available to help our veterans.
I would like to thank the subcommittee for this opportunity and
will welcome any questions.
Statements For The Record
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO (AFGE)
J. DAVID COX, SR., NATIONAL PRESIDENT
Chairman Arrington and Ranking Member O'Rourke, and members of the
Subcommittee, my name is J. David Cox, and I am the National President
of the American Federation of Government Employees, AFL-CIO (AFGE). I
submit this statement in opposition to H.R. 1461 on behalf of the
700,000 federal and District of Columbia employees AFGE represents, and
I urge the Subcommittee to reject this legislation.
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
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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.
Official time may not be used for 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 union 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.
Specifically, AFGE opposes the provisions of H.R. 1461 for the
following reasons:
Excessive Limitations of Official Time
While H.R. 1461 does not, on its face, eliminate official time in
the Veterans Administration, it places limits that are inconsistent
with unions' legal obligation to provide the same services to those
employees who pay dues as well as those who choose not to pay. This
legislation severely limits the use of this longstanding tool which
gives federal agencies and their employees the means to expeditiously
and effectively address mission-related challenges and bring closure to
conflicts that arise in the workplace.
Dictating who may or may not use official time arbitrarily makes a
significant portion of federal employees who choose to join the union
ineligible for election to leadership positions in the union. In
accordance with the law, official time is used only by elected officers
in the union. By prohibiting most medical professionals from using any
official time, and severely restricting the use of official time by
patient care professionals, the Veterans Health Administration will no
longer have a managed system in place that gives employees with
specific health care expertise a structured system to safely report and
address issues impeding the delivery of quality medical care to
veterans. In many cases, the union official best able to address
employer-employee relations effectively and timely is a person who has
worked in a similar profession.
Further, management has often expressed to our local elected
leaders a preference for engaging on labor-management issues with just
a few representatives who are available and knowledgeable to address
those issues in a timely manner. Many labor-management concerns can be
addressed in the early stages. If we are not able to have sufficient
time dedicated to these needs, problems that can be resolved before
they become larger may grow and multiply. An efficient working
relationship between labor and management, with individuals dedicated
to this work from both labor and management, is the best way to ensure
that VA staff are at their jobs serving America's veterans.
Revoking Membership At Any Time
H.R. 1461 allows union members to revoke their membership at any
time. Right now, they sign a contract for a year. Bargaining unit
members should not be able to drop in and out several times each year,
and a contractual agreement between the union and its members must be
upheld. Individuals cannot buy health insurance just in time to go to
the doctor, drop it the next day, and then pick it up again a few
months later when they get sick. The union dedicates resources to its
membership and should be able to count on a year-long membership at a
time.
Extension of Probationary Periods
H.R. 1461 extends from 12 months to 18 months the probationary
period for newly hired employees. Any good manager knows within a year,
in fact within six months, whether a new hire is a good fit and will
thrive in their position. Further, with 45,000 positions to be filled,
the VA is at a deficit in attracting highly trained and experienced
professionals. The VA will lose its competitive edge as an employer if
it cannot provide the stability and benefits of full-time career
positions, especially when recruiting medical professionals.
Ban on Communication with Congress while on Duty Time
H.R. 1461 prohibits formal communication with lawmakers while on
official time. This would include the ability to inform Congress of the
impact of new or pending legislation or an agency's failure to comply
with Congressional inquiries or requests. The ability to make
presentations to lawmakers is an important element of our
representational responsibilities. We ask that you modify this blanket
prohibition because it is too broad and ultimately inconsistent with
the public interest in having formal lines of communication open
between Congress and rank and file federal employees in the Executive
Branch. Please be assured that we train our member on the requirements
of the Hatch Act and we adhere closely to those appropriate
restrictions. Oversight of federal agencies is the one of the most
important functions of the Congress. We urge you to recognize that
federal employees are often the most knowledgeable and committed
advocates for the mission of the government. Congress and the American
people benefit when they are able to have direct formal communication
regarding processes and systems that may be working or not working, and
what might be needed to improve an agency's mission. Although as
citizens federal employees can always meet with their Congressional
representatives, as federal employees our members have voted to have
the right to be represented formally by their employee organization and
have voted to have their views conveyed to Congress through their
union.
Official Time: A Partnership 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.
Imagine for a moment an arrangement where there is neither official
time nor fair share fees, yet the union is legally liable for
representation of each individual in the bargaining unit. These
representational duties would include both negotiating and enforcing
the terms of the contract on behalf of the employees in the unit. There
could be no union representation. This is an obvious absurdity, as
indeed there is no private entity that is required by law to offer its
services for free. No business is required to do this. No non-profit is
required to do this. Even religious institutions and other tax-exempt
entities are not required to do this. This is the peculiarity of law
that gave rise to the negotiation between federal agencies and their
unions for reasonable time to carry out these representational duties
prescribed by law.
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 union 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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\3\ http://gao.gov/assets/690/682250.pdf page 19.
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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
union 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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\4\ http://gao.gov/assets/690/682250.pdf page 20.
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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 union representatives that make these
kinds 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 union 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 union
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 union
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, which is called for in H.R.
1461. 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, which H.R. 1461 does. 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 union
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. As stated previously, 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 union 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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\6\ https://www.fedscope.opm.gov/ibmcognos/cgi-bin/cognosisapi.dll
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Conclusion
This Subcommittee held a hearing on February 16, 2107 at which it
was acknowledged that the GAO report did recommend that the DVA improve
its recordkeeping with regard to union representatives' use of the
reasonable amounts of official time permitted to them. The report did
not conclude that any of the provisions of H.R. 1461 were necessary or
warranted. It identified no union failure or unwillingness to report
use of official time to DVA management. And in no way did the report
suggest that the use of official time presents problems for the
Department. Instead, GAO that this Subcommittee reviewed 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 union 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 committee 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 submit this statement and I strongly urge the
Subcommittee to reject H.R. 1461.
[all]