[Senate Report 112-68]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 148
112th Congress                                                   Report
                                 SENATE
 1st Session                                                     112-68

======================================================================



 
A BILL TO AMEND TITLE 38, UNITED STATES CODE, TO REPEAL THE PROHIBITION 
    ON COLLECTIVE BARGAINING WITH RESPECT TO MATTERS AND QUESTIONS 
   REGARDING COMPENSATION OF EMPLOYEES OF THE DEPARTMENT OF VETERANS 
     AFFAIRS OTHER THAN RATES OF BASIC PAY, AND FOR OTHER PURPOSES

                                _______
                                

               September 6, 2011.--Ordered to be printed

                                _______
                                

         Mrs. Murray, from the Committee on Veterans' Affairs,
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [To accompany S. 572]

    The Committee on Veterans' Affairs (hereinafter, ``the 
Committee''), to which was referred the bill (S. 572), to amend 
title 38, United States Code (hereinafter, ``U.S.C.''), to 
repeal the prohibition on collective bargaining with respect to 
matters and questions regarding compensation of employees of 
the Department of Veterans Affairs other than rates of basic 
pay, and for other purposes, having considered the same, 
reports favorably thereon, and recommends that the bill do 
pass.

                              Introduction

    On March 14, 2011, Senator Sherrod Brown of Ohio introduced 
S. 572. Senators Begich, Franken, Merkley, Mikulski, 
Rockefeller and Sanders were original cosponsors. S. 572, as 
introduced, would amend title 38 to repeal the prohibition on 
collective bargaining with respect to matters and questions 
regarding compensation of employees of the Department of 
Veterans Affairs (hereinafter, ``VA'' or ``the Department'') 
other than rates of basic pay, and for other purposes. The bill 
was referred to the Committee.

                           Committee Hearing

    On June 8, 2011, the Committee held a hearing on pending 
legislation, including S. 572. Testimony on S. 572 was offered 
by: Robert L. Jesse, MD, PhD, Principal Deputy Under Secretary 
for Health, Veterans Health Administration, Department of 
Veterans Affairs; Joseph A. Violante, National Legislative 
Director, Disabled American Veterans; and J. David Cox, 
National Secretary-Treasurer, American Federation of Government 
Employees (hereinafter, ``AFGE'').

                           Committee Meeting

    After carefully reviewing the testimony from the foregoing 
hearing, the Committee met in open session on June 29, 2011, to 
consider, among other legislation, S. 572, as introduced by Mr. 
Brown of Ohio. The Committee then agreed to the bill by a call 
of the roll.

                     Summary of S. 572 as Reported

    S. 572 as reported (hereinafter, ``the Committee bill'') is 
summarized below:

    Section 1 would repeal the prohibition on collective 
bargaining for Department employees hired under the authority 
of title 38, U.S.C., with respect to matters and questions 
regarding compensation of such employees other than matters and 
questions regarding rates of basic pay.

                       Background and Discussion


Sec. 1. Repeal of prohibition on collective bargaining with respect to 
        compensation of Department of Veterans Affairs employees other 
        than rates of basic pay.

    Section 1 of the Committee bill would repeal the 
prohibition on collective bargaining for Department employees 
hired under the authority of title 38, U.S.C. (hereinafter, 
``Title 38 Employees''), with respect to matters and questions 
regarding compensation of such employees other than matters and 
questions regarding rates of basic pay.
    Background. Collective bargaining rights refer to the 
rights of employees to grieve, arbitrate, and negotiate over 
conditions of their employment. The Veterans Health 
Administration (hereinafter, ``VHA'') employees are hired under 
different statutory authority, depending upon their occupation, 
and, as such, are subject to different personnel laws. Certain 
personnel, such as physicians, dentists, registered nurses, 
optometrists, physician assistants, and podiatrists, are hired 
under the authority of title 38, U.S.C., and are subject to the 
provisions of chapter 74 of title 38, U.S.C., for placement, 
pay schedules, leave, hours of duty, discipline, adverse 
actions and appeals, and performance management. Other 
employees, such as practical nurses, occupational therapists, 
pharmacists, physical therapists, and respiratory therapists 
are covered by rules in title 38 for placement and pay 
administration, but are covered by rules in title 5, U.S.C., 
for pay schedules, disciplinary and adverse action procedures, 
and performance management and leave systems (hereinafter, 
``Title 38 Hybrid Employees'').
    Title 5, U.S.C., generally encompasses employment laws for 
all Federal employees, except some VA personnel and national 
security personnel, and provides more robust collective 
bargaining rights for the employees hired under that authority. 
In 1991, in recognition that both Title 38 Employees and Title 
38 Hybrid Employees with different bargaining rights may work 
alongside one another in VA facilities, Congress passed Public 
Law 102-40, to provide collective bargaining rights to all 
Department medical personnel hired under the authority of title 
38, U.S.C. Under section 7422 of title 38, U.S.C., Title 38 
Employees may negotiate, file grievances, and arbitrate 
disputes over working conditions with three exceptions: matters 
concerning professional conduct or competence, peer review, or 
compensation.
    The Committee received testimony from AFGE on June 8, 2011, 
regarding S. 572. In a statement, AFGE National Secretary-
Treasurer J. David Cox asserted that ``VA's 7422 policy seems 
especially arbitrary because it singles out one group of VHA 
employees while affording full compensation bargaining rights 
to others working in the same hospitals and clinics. For 
example, a VA registered nurse cannot grieve over overtime pay 
while a VA licensed practical nurse can. Similarly, a VA 
psychiatrist cannot grieve over the loss of incentive pay while 
a VA psychologist can. This disparate treatment also harms the 
VA's ability to attract and retain medical professionals.'' Cox 
further stated that S. 572 ``restores equal bargaining rights 
over routine compensation matters,'' and ``provides a 
commonsense solution for reducing costly, demoralizing disputes 
between VHA managers and employees.'' It is also the position 
of AFGE that S. 572 ``saves VA health care dollars that should 
be spent on veterans, boosts workplace morale, and helps the VA 
remain an employer of choice in the health care marketplace.''
    Committee Bill. The Committee bill would amend subsections 
(b) and (d) of section 7422 of title 38, United States Code, so 
as to clarify the scope of the compensation exclusion to 
bargaining, by substituting the phrase ``rates of basic pay'' 
for ``compensation.''
    It is the Committee's intent that the term ``rates of basic 
pay'' will clarify that the right to set pay scales is reserved 
for Congress, and that Title 38 Employees may bargain over 
other compensation issues, such as calculation of overtime pay, 
access to wage survey data, and implementation of performance 
pay measures.

                      Committee Bill Cost Estimate

    In compliance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate, the Committee, based on 
information supplied by the Congressional Budget Office 
(hereinafter, ``CBO''), could increase personnel costs but 
there is not enough information to estimate the likelihood or 
potential magnitude of the potential increases. CBO further 
estimates that enacting the bill would not increase direct 
spending or affect revenues. Enactment of the Committee bill 
would not affect receipts and would not affect the budget of 
state, local or tribal governments.
    The cost estimate provided by CBO, setting forth a detailed 
breakdown of costs, follows:

                               Congressional Budget Office,
                                      Washington, DC, July 6, 2011.
Hon. Patty Murray,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.

    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 572, a bill to amend 
title 38, United States Code, to repeal the prohibition on 
collective bargaining with respect to matters and questions 
regarding compensation of employees of the Department of 
Veterans Affairs other than rates of basic pay, and for other 
purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dwayne M. 
Wright.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.

  Enclosure.

S. 572, A bill to amend title 38, United States Code, to repeal the 
        prohibition on collective bargaining with respect to matters 
        and questions regarding compensation of employees of the 
        Department of Veterans Affairs other than rates of basic pay, 
        and for other purposes

    S. 572 would expand the collective bargaining authority of 
certain employees of the Veterans Health Administration (VHA). 
Under current law, the Secretary of Veterans Affairs has the 
discretion to appoint certain personnel to VHA--such as 
physicians, nurses, dentists, and physician assistants--and to 
set their hours and conditions of employment. Such employees 
are prohibited from collectively bargaining over matters 
pertaining to professional conduct or competence, peer reviews, 
or compensation. S. 572 would relax those restrictions by 
allowing collective bargaining over compensation issues 
excluding rates of basic pay.
    Based on information from VHA, CBO expects that under the 
bill about 80,000 employees of the agency's roughly 250,000 
employees would be able to collectively bargain over forms of 
compensation such as special pays (which are based on 
performance, cost of living, or market conditions), awards and 
bonuses, and overtime or special scheduling arrangements. 
Compensation for VHA employees is funded through annual 
appropriations and will total almost $20 billion in 2011, CBO 
estimates. Under the bill, VHA's personnel costs could increase 
in several ways; for example, employees could negotiate bonuses 
or performance awards, higher rates for overtime pay, and 
higher special pay for employees in specialties that are in 
high demand. However, CBO has no basis upon which to estimate 
the likelihood or potential magnitude of those effects.
    Enacting S. 572 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    S. 572 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Dwayne M. 
Wright. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                      Regulatory Impact Statement

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee on Veterans' 
Affairs has made an evaluation of the regulatory impact that 
would be incurred in carrying out the Committee bill. The 
Committee finds that the Committee bill would not entail any 
regulation of individuals or businesses or result in any impact 
on the personal privacy of any individuals and that the 
paperwork resulting from enactment would be minimal.

                 Tabulation of Votes Cast in Committee

    In compliance with paragraph 7 of rule XXVI of the Standing 
Rules of the Senate, the following is a tabulation of votes 
cast in person or by proxy by members of the Committee on 
Veterans' Affairs at its June 29, 2011, meeting. The following 
senators were present: Mr. Akaka, Mr. Tester, Mr. Burr, Mr. 
Isakson, Mr. Brown of Massachusetts, Mr. Moran, Mr. Boozman, 
Madam Chairman.
    The Committee then agreed to the measure and ordered 
S. 572, to be reported favorably to the Senate by a call of the 
roll.


----------------------------------------------------------------------------------------------------------------
                Yeas                                 Senator                                 Nays
----------------------------------------------------------------------------------------------------------------
                      X (by proxy)   Mr. Rockefeller
                                 X   Mr. Akaka
                      X (by proxy)   Mr. Sanders
                      X (by proxy)   Mr. Brown of Ohio
                      X (by proxy)   Mr. Webb
                                 X   Mr. Tester
                      X (by proxy)   Mr. Begich
                                     Mr. Burr                                                                 X
                                     Mr. Isakson                                                              X
                                     Mr. Wicker                                                    X (by proxy)
                                     Mr. Johanns                                                   X (by proxy)
                                     Mr. Brown of Massachusetts                                               X
                                     Mr. Moran                                                                X
                                     Mr. Boozman                                                              X
                                 X   Madam Chairman
----------------------------------------------------------------------------------------------------------------
                                 8   TALLY                                                                    7
----------------------------------------------------------------------------------------------------------------

                             Agency Report

    On June 8, 2011, Robert L. Jesse, MD, PhD, Principal Deputy 
Under Secretary for Health, Veterans Health Administration, 
Department of Veterans Affairs, appeared before the Committee 
on Veterans' Affairs and submitted testimony on, among other 
things, S. 572. Excerpts from this statement are reprinted 
below:

   STATEMENT OF ROBERT L. JESSE, M.D., Ph.D., PRINCIPAL DEPUTY UNDER 
 SECRETARY FOR HEALTH, VETERANS HEALTH ADMINISTRATION, U.S. DEPARTMENT 
OF VETERANS AFFAIRS

           *       *       *       *       *       *       *


    S. 572 would amend 38 U.S.C. 7422 by replacing the word 
``compensation'' in sections (b) and (d) with the words ``rates 
of basic pay.'' While we appreciate the many contributions 
collective bargaining and the labor-management partnership make 
to VA's mission, we strongly oppose S. 572.
    VA would like to stress to the Committee that we deeply 
value the contributions of our employees, and work to enjoy a 
collaborative, positive working relationship with unions across 
the country. We hold retention of employees as a critically 
important goal, and encourage the management teams of VA 
facilities to offer professional development opportunities and 
encourage personal growth.
    This bill would repeal the prohibition on collective 
bargaining with respect to compensation of title 38 employees. 
Currently, 38 U.S.C. 7422(b) and (d) exempt ``any matter or 
question concerning or arising out of * * * the establishment, 
determination, and adjustment of [title 38] employee 
compensation'' from collective bargaining. This bill would 
replace the word ``compensation'' with the phrase ``rates of 
basic pay.'' This change would apparently make subject to 
collective bargaining all matters relating to the compensation 
of title 38 employees (physicians, dentists, nurses, et al.) 
over which the Secretary has been granted any discretion.
    In order to provide the flexibility necessary to administer 
the title 38 system, Congress granted the Secretary significant 
discretion in determining the compensation of VA's health care 
professionals. When Congress first authorized title 38 
employees to engage in collective bargaining with respect to 
conditions of employment, it expressly exempted bargaining over 
``compensation'' in recognition of the U.S. Supreme Court's 
ruling in Ft. Stewart Schools v. FLRA, 495 U.S. 641 (1990). In 
that case the Court held that the term ``conditions of 
employment,'' as used in the Federal Service Labor-Management 
Relations Statute (5 U.S.C. 7101), included salary, to the 
extent that the agency has discretion in establishing, 
implementing, or adjusting employee compensation. Id. at 646-
47. Thus, Congress sought to make clear in 38 U.S.C. 7422(b) 
that title 38 employees' right to bargain with respect to 
``conditions of employment'' did not include the right to 
bargain over compensation. Over the years, Congress has 
authorized VA to exercise considerable discretion and 
flexibility with respect to title 38 compensation to enable VA 
to recruit and retain the highest quality health care 
providers.
    The term ``rates of basic pay'' is not defined in title 38. 
However, the Department has defined ``basic pay'' as the ``rate 
of pay fixed by law or administrative action for the position 
held by an employee before any deductions and exclusive of 
additional pay of any kind.'' VA Handbook 5007, Part IX, par. 
5. Such additional pay includes market pay, performance pay, 
and any other recruitment or retention incentives. Id. 
Accordingly, S. 572 would subject many discretionary aspects of 
title 38 compensation to collective bargaining. For example, 
there are two discretionary components of compensation for VA 
physicians and dentists under the title 38 pay system--market 
pay and performance pay. Market pay, when combined with basic 
pay, is meant to reflect the recruitment and retention needs 
for the specialty or assignment of the particular physician or 
dentist in a VA facility. Basic pay for physicians and dentists 
is set by law and would remain non-negotiable under this bill, 
but the Secretary has discretion to set market pay on a case-
by-case basis. Market pay is determined through a peer-review 
process based on factors such as experience, qualifications, 
complexity of the position, and difficulty recruiting for the 
position. In many cases, market pay exceeds basic pay. In those 
situations, this bill would render a large portion or even the 
majority of most physicians' pay subject to collective 
bargaining. The Secretary also has discretion over the amount 
of performance pay, which is a statutorily authorized element 
of annual pay paid to physicians and dentists for meeting goals 
and performance objectives. Under this bill, performance pay 
would also be negotiable. Likewise, pay for nurses entails 
discretion because it is set by locality-pay surveys. Further, 
Congress has granted VA other pay flexibilities involving 
discretion, including premium pay, on-call pay, alternate work 
schedules, Baylor Plan, special salary rates, and recruitment 
and retention bonuses. The ability to exercise these pay 
flexibilities is a vital recruitment and retention tool. It is 
necessary to allow VA to efficiently compete on a cost-
effective basis with the private sector and to attract and 
retain clinical staff who deliver health care to Veterans. As 
described below, this flexibility would be greatly hindered by 
the collective bargaining ramifications of S. 572.
    This bill would obligate VA to negotiate with unions over 
all discretionary matters relating to compensation, and to 
permit employees to file grievances and receive relief from 
arbitrators when they are unsatisfied with VA decisions about 
discretionary pay. If VA were obligated to negotiate over such 
matters, it could be barred from implementing decisions about 
discretionary pay until it either reaches agreements with its 
unions or until it receives a binding decision from the Federal 
Service Impasses Panel. Stated differently, VA could be 
prevented from hiring clinical staff and have decisions 
regarding appropriate clinical staff subject to third party 
delay and retroactive change. This could significantly hinder 
our ability and flexibility to hire clinical staff as needed to 
timely meet patient-care needs.
    Moreover, any time an employee was unsatisfied with VA's 
determination of his or her discretionary pay, the union could 
grieve and ultimately take the matter to binding arbitration. 
This would allow an arbitrator to substitute his or her 
judgment for that of VA and, with regard to physician market 
pay, to override peer review recommendations. This bill would 
allow independent third-party arbitrators and other non-VA, 
non-clinical labor third parties who lack clinical training and 
expertise to make compensation determinations. VA would have 
limited, if any, recourse to appeal such decisions.
    Importantly, S. 572 would result in unprecedented changes 
in how the Federal Government operates. It would permit unions 
to bargain over, grieve, and arbitrate a subject--employee 
compensation--that is generally exempted from collective 
bargaining even under title 5. Although Congress has built much 
more Agency discretion into the title 38 compensation system 
both to achieve the desired flexibility and because the system 
is unique to VA, permitting title 38 employees to negotiate the 
discretionary aspects of their compensation would be at odds 
with how other Federal employees are generally treated. 
Further, collective bargaining over discretionary aspects of 
pay is unnecessary. VA's retention rates for physicians and 
dentists are comparable to private sector retention rates, 
while retention rates for VA registered nurses significantly 
exceed those of the private sector, strongly suggesting that 
the lack of bargaining ability over discretionary aspects of 
pay has not negatively affected VA's ability to retain title 38 
employees.
    To address some of the concerns expressed by the unions, 
the Secretary convened a group of union and management 
officials to formulate recommendations to jointly explore and 
clarify the implementation of the title 38 exclusions under 
section 7422.
    This workgroup was a significant cooperative effort, 
spanning multiple meetings, in person and via conference calls, 
from July 2009 through May 2010. The 7422 workgroup membership 
included field clinicians, the Office of General Counsel, the 
Office of Labor Management Relations, and the five national 
unions (American Federation of Government Employees (AFGE); 
National Association of Government Employees (NAGE); Service 
Employees International Union (SEIU); United American Nurses 
(UAN) (now National Nurses United (NNU)); and, National 
Federation of Federal Employees (NFFE). Assistant Secretary for 
HR&A, John Sepulveda, participated in all face to face meetings 
of the workgroup.
    The final result of the workgroup was sixteen individual 
recommendations, as well as concise position papers of the 
parties and joint supporting documents. Included in the 
recommendations approved by the Secretary in December 2010 was 
language to address union concerns with the way section 7422, 
including the compensation exclusion is implemented. Also in 
December 2010, Memorandum of Understanding (MOU) with the 
approved recommendations was signed by the Deputy Secretary, W. 
Scott Gould; the Under Secretary for Health, Robert A. Petzel, 
MD; the Assistant Secretary for HR&A, John U. Sepulveda; and 
the leaders of four of the five national unions. The Secretary 
has charged an implementation team to work on further 
development of an action plan to implement the 7422 working 
group's approved recommendations. A meeting is scheduled for 
July 6-7, 2011, in Washington, DC. Additional meetings will be 
scheduled to complete the implementation process. The MOU as 
well as our actions to implement it show our commitment to 
collaborate with the unions and make the passage of S. 572 
unnecessary.
    We are not able to estimate the cost of S. 572 for two 
reasons. First, if VA is required to negotiate over 
compensation matters, and if the Agency is unable to reach 
agreements with the unions, the final decisions on pay will 
ultimately rest with the Federal Service Impasses Panel. The 
Panel has discretion to order VA to comply with the unions' 
proposals. Second, if pay issues become grievable and 
arbitrable, the final decisions on pay will rest in the hands 
of arbitrators.
    On the whole, our efforts to recruit and retain health care 
professionals have been widely successful, and have not in any 
way been impaired by the exclusion of matters concerning or 
arising out of compensation from collective bargaining. We 
would be glad to share applicable data with the Committee and 
brief the members on our continuing efforts in this area.

           *       *       *       *       *       *       *


                 MINORITY VIEWS OF HON. RICHARD BURR, 
                             RANKING MEMBER

    I write separately because any matter affecting union 
rights to bargain, which may negatively affect the health care 
benefits our nation's veterans receive, should give us all 
pause.
    Employees governed under the title 38, United States Code, 
personnel system can collectively bargain over all matters 
except professional conduct or competence; matters affecting 
peer review; or the establishment, determination, or adjustment 
of employee compensation. The legislation approved by the 
majority would make all compensation matters (except basic 
rates of pay) open to collective bargaining. Specifically, this 
change would allow collective bargaining with respect to items 
that are now at the Secretary's discretion, including market 
pay; performance pay; premium pay; on-call pay; pay connected 
with the Baylor Plan schedule; special salary rates; 
recruitment and retention bonuses; and nurse locality pay.
    Here are my concerns:

    The Committee received testimony in each of the last three 
Congresses regarding legislation to amend the law governing VA 
employees' collective bargaining rights, a law that has not 
been amended since its inception 20 years ago. Both the Obama 
and Bush administrations testified strongly against the 
legislation. For example, here is an excerpt from VA's 
testimony at the June 8, 2011, Committee hearing to review 
legislation to modify the collective bargaining law:

        While we appreciate the many contributions collective 
        bargaining and the labor-management partnership make to 
        VA's mission, we strongly oppose S. 572.

           *       *       *       *       *       *       *

         * * * The ability to exercise * * * pay flexibilities 
        is a vital recruitment and retention tool. It is 
        necessary to allow VA to efficiently compete on a cost-
        effective basis with the private sector and to attract 
        and retain clinical staff who deliver health care to 
        Veterans * * *. [T]his flexibility would be greatly 
        hindered by the collective bargaining ramifications of 
        S. 572.
         * * * VA could be prevented from hiring clinical staff 
        and have decisions regarding appropriate clinical staff 
        subject to third party delay and retroactive change. 
        This could significantly hinder our ability and 
        flexibility to hire clinical staff as needed to timely 
        meet patient-care needs.

    In the face of this testimony, are we prepared to say that 
extending the ability to bargain over these matters will not 
negatively affect operation of VA's health care system? What 
would be the effect of protracted negotiations on these matters 
if VA and the unions could not reach agreements? What would be 
the effect of a third party arbitrator deciding matters 
impacting operations of a health care system? What would the 
impact be on hospital budgets and management flexibility to use 
resources on critical items?
    Furthermore, it's hard to imagine how this legislation 
could be considered necessary. To address union concerns that 
apparently led to this legislation, the Secretary convened a 
workgroup of management officials and national unions to 
clarify and explore the exclusions in section 7422 of title 38. 
This workgroup held meetings spanning close to a year which 
resulted in numerous recommendations approved by the Secretary 
in December 2010, prescribing the manner in which exclusions 
under section 7422 are implemented. In other words, VA is 
already addressing the unions' concerns.
    While I support the men and women who tirelessly work to 
serve our nation's veterans, I must recommend caution in moving 
forward with any legislation that may adversely affect the 
health care our nation's veterans receive.

           *       *       *       *       *       *       *


                        Changes in Existing Law

    In compliance with paragraph 12 of Rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman).

TITLE 38. VETERANS' BENEFITS

           *       *       *       *       *       *       *


PART V. BOARDS, ADMINISTRATIONS, AND SERVICES

           *       *       *       *       *       *       *


CHAPTER 74. VETERANS HEALTH ADMINISTRATION--PERSONNEL

           *       *       *       *       *       *       *


Subchapter II. Collective Bargaining and Personnel Administration

           *       *       *       *       *       *       *


SEC. 7422. COLLECTIVE BARGAINING

    (a) * * *
    (b) Such collective bargaining (and any grievance 
procedures provided under a collective bargaining agreement) in 
the case of employees described in section 7421(b) of this 
title may not cover, or have any applicability to, any matter 
or question concerning or arising out of (1) professional 
conduct or competence, (2) peer review, or (3) the 
establishment, determination, or adjustment of employee 
[compensation] rates of basic pay under this title.
    (c) * * *
    (d) An issue of whether a matter or question concerns or 
arises out of (1) professional conduct or competence, (2) peer 
review, or (3) the establishment, determination, or adjustment 
of employee [compensation] rates of basic pay under this title 
shall be decided by the Secretary and is not itself subject to 
collective bargaining and may not be reviewed by any other 
agency.

           *       *       *       *       *       *       *

  

                                  
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