[House Report 118-594]
[From the U.S. Government Publishing Office]


118th Congress }                                          { Report 
                        HOUSE OF REPRESENTATIVES
  2d Session   }                                          { 118-594

======================================================================
 
                  VA CORRECT COMPENSATION ACT OF 2023

                                _______
                                

 July 18, 2024.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Bost, from the Committee on Veterans' Affairs, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 6538]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 6538) to amend title 38, United States Code, to 
provide for a definition of ``establishment, determination, or 
adjustment of employee compensation'' for purposes of the 
collective bargaining of certain Department of Veterans Affairs 
employees, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     3
Subcommittee Consideration.......................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     4
Statement of General Performance Goals and Objectives............     4
Earmarks and Tax and Tariff Benefits.............................     4
Committee Cost Estimate..........................................     4
Budget Authority and Congressional Budget Office Estimate........     5
Federal Mandates Statement.......................................     6
Advisory Committee Statement.....................................     6
Applicability to Legislative Branch..............................     6
Statement on Duplication of Federal Programs.....................     6
Section-by-Section Analysis of the Legislation...................     6
Changes in Existing Law Made by the Bill, as Reported............     7

                          Purpose and Summary

    H.R. 6538, the ``VA Correct Compensation Act of 2023,'' was 
introduced by Representative Mark Takano of California on 
November 30, 2023. The bill would define what establishment, 
determination, or adjustment of employee compensation means 
within 38 United States Code (U.S.C.) Sec. 7422 to make clear 
Title 38 Department of Veterans Affairs (VA) employees, 
including physicians, registered nurses, physician assistants, 
and other medical professionals, could collectively bargain and 
grieve compensation issues where VA does not follow law, rule, 
regulation, or binding agreement, but not collectively bargain 
or grieve pay rates.

                  Background and Need for Legislation


Section 1: Short title

    This Act may be cited as the ``VA Correct Compensation Act 
of 2023.''

Section 2: Definition of ``Establishment, Determination, or Adjustment 
        of Employee Compensation'' for Purposes of the Collective 
        Bargaining of Certain Department of Veterans Affairs Employees

    Under 38 U.S.C. Sec. 7422, VA has authority to deny 
collective bargaining and grievance right to certain Title 38 
employees, that are otherwise available to VA employees. 
Specifically, 38 U.S.C. Sec. 7422 prevents these medical 
professionals from collectively bargaining or grieving issues 
related to direct patient care, clinical competence, peer 
review, and the establishment, determination, or adjustment of 
employee compensation. The Committee believes VA has often 
interpreted the ``establishment, determination, or adjustment 
of employee compensation'' language broadly, denying Title 38 
employees the right to grieve situations where VA has 
consistently failed to pay salaries and overtime required by 
law. The Committee has identified numerous cases where VA 
failed to pay Title 38 employees the correct amount as required 
by law, which has often put these employees in financial 
distress, lowered morale, and harmed VA employee retention 
efforts.
    For example, although an arbitrator ruled in favor of 
American Federation of Government Employees (AFGE), which filed 
a grievance on behalf of operating rooms nurses of the 
Asheville North Carolina VA Medical Center after the nurses 
failed to receive night and weekend differential pay, VA 
decided per 38 U.S.C. Sec. 7422 the arbitrator's decision 
concerned the establishment, determination, or adjustment of 
employee compensation.\1\ As such, VA denied the grievance and 
the nurses were never correctly paid. Similarly, VA failed to 
accurately pay overtime to VA employees who volunteered to work 
weekends at the Olean Community Based Outpatient Clinic (CBOC) 
near the Buffalo New York VA Medical Center. Although a 
grievance was filed, VA found the grievance was excluded from 
collective bargaining as a matter or question concerning or 
arising out of the establishment, determination, or adjustment 
of employee compensation within the meaning of 38 U.S.C. 
Sec. 7422. Thus, VA denied the grievance and never correctly 
paid the employees the pay they were owed under law.\2\
---------------------------------------------------------------------------
    \1\Legis. Hearing on: H.R. 6452, Veterans Scam and Fraud Evasion 
Act; H.R. 6531, TRAIN VA Employees Act; H.R. 6538, VA Correct 
Compensation Act; H.R. 6874, VA WEB Act; H.R. 6947, Veterans Affairs 
Centennial and Heritage Act; H.R. 7342, Veterans Accessibility Advisory 
Committee Act; H.R. XXXX, VA Security Screening Pilot Program Act; H.R. 
XXXX, Required Notation of Investigation in Personnel Record File Act; 
and H.R. XXXX, Reporting Performance Plans for VA Political Appointees 
Act, Before the H. Comm. on Veterans' Affairs Subcomm. on Oversight and 
Investigations, 118th Cong. (2024) (statement of Mrs. Joycelyn 
Westbrooks, Secretary-Treasurer AFGE Local 1633, American Federation of 
Government Employees, AFL-CIO.
    \2\Id.
---------------------------------------------------------------------------
    This section would address this issue by defining exactly 
what compensation components Title 38 employees can negotiate. 
This section would amend 38 U.S.C. Sec. 7422 to make clear 
Title 38 employees can collectively bargain or grieve 
compensation issues where VA does not follow law, rule, 
regulating, or binding agreement. At the same time, this 
section would make clear rates of pay cannot be collectively 
bargained or grieved. These changes were broadly supported at 
the March 21, 2024, Oversight and Investigations Subcommittee 
legislative hearing on H.R. 6538. The Committee believes this 
section would prevent VA from failing to correctly compensate 
Title 38 employees by making clear these employees can 
collectively bargain or grieve issues where VA fails to follow 
law, rule, regulation, or binding agreement. The Committee 
believes this clarification would prevent VA from citing 38 
U.S.C. Sec. 7422 as the reason to deny grievances like the 
Asheville North Carolina VA Medical Center operating room 
nurses' grievance and the grievance stemming from employees 
volunteering to work weekends at the Olean CBOC. The Committee 
also believes the section would prevent Title 38 employees from 
trying to collectively bargain or grieve rates of pay by making 
clear ``establishment, determination or adjustment of employee 
compensation'' under 38 U.S.C. Sec. 7422 means setting a rate 
of pay as required by law, rule, or regulation.

                                Hearings

    On Thursday, March 21, 2024, the Subcommittee on Oversight 
and Investigations held a legislative hearing on H.R. 6538 and 
other bills that were pending before the subcommittee.
    The following witnesses testified:
          Mr. John W. Boerstler, Chief Veterans Experience 
        Office, Office of Human Resources and Administration-
        Operations, Security, and Preparedness (HRA/OSP), U.S. 
        Department of Veterans Affairs; Ms. Tracey Therit, 
        Chief Human Capital Officer, HRA/OSP, U.S. Department 
        of Veterans Affairs; Mr. David Perry, Chief Officer, 
        Workforce Management and Consulting, Veterans Health 
        Administration, U.S. Department of Veterans Affairs; 
        Mr. Charles Worthington, Chief Technology Officer, 
        Office of Information Technology, U.S. Department of 
        Veterans Affairs; and Ms. Joycelyn Westbrooks, 
        Registered Nurse, Secretary-Treasurer, AFGE Local 1633, 
        U.S. Department of Veterans Affairs.
    The following individuals and organizations submitted 
statements for the record:
          American Association of Nurse Anesthesiology, NFFE, 
        SEIU, PVA, Representative Brandon Williams (NY-22), 
        Senior Executives Association, Representative Mike 
        Turner (OH-10), and United Nurses Association of 
        California-Union of Health Care Professionals.

                       Subcommittee Consideration

    On Wednesday, April 17, 2024, the Subcommittee on Oversight 
and Investigations held a markup on pending legislation 
including H.R. 6538. There were no amendments to H.R. 6538 
during the Subcommittee markup. A motion by Representative 
Mrvan to report H.R. 6538 as part of an en bloc was favorably 
forwarded to the full Committee.

                        Committee Consideration

    On Wednesday, May 1, 2024, the Full Committee met in open 
markup session, a quorum being present, and ordered H.R. 6538 
be reported favorably to the House of Representatives by voice 
vote. During consideration of the bill, no amendments were 
filed. A motion by Ranking Member Takano to report H.R. 6538 
favorably to the House of Representatives was agreed to by 
voice vote.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, no recorded votes were taken on 
amendments or in connection with ordering H.R. 6538 reported to 
the House.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives of H.R. 6538 are to hold VA accountable by 
making clear Title 38 VA Employees can collectively bargain and 
grieve compensation issues where VA fails to follow law, rule, 
regulation, or binding agreement.

                  Earmarks and Tax and Tariff Benefits

    H.R. 6538 does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the Rules of the House of 
Representatives.

                        Committee Cost Estimate

    The Committee adopts as its own the cost estimate on H.R. 
6538 prepared by the Director of the Congressional Budget 
Office.

     Budget Authority and Congressional Budget Office Cost Estimate




    H.R. 6538 would expand the conditions of employment that 
are subject to collective bargaining for certain employees of 
the Department of Veterans Affairs (VA). Under current law, the 
Secretary of Veterans Affairs has broad authority to regulate 
the hours and conditions of employment for physicians, 
dentists, podiatrists, optometrists, chiropractors, registered 
nurses, physician assistants, and dental assistants employed by 
the Veterans Health Administration (VHA). Those employees are 
prohibited from collectively bargaining over matters pertaining 
to professional conduct or competence, peer review, and 
compensation. Under the bill, those employees could 
collectively bargain over compensation and challenge decisions 
affecting their compensation.
    According to VA, approximately 31,000 biennial compensation 
reviews and 6,000 locality pay reviews could be subject to 
negotiation, challenge, and arbitration. However, neither the 
department nor CBO can predict which of those actions would be 
subject to negotiation under the bill, nor can we anticipate 
the effect of those negotiations on personnel compensation.
    Compensation for VHA personnel is funded with discretionary 
appropriations and with funds from the Toxic Exposures Fund, a 
mandatory appropriation. Some economic research indicates that 
collective bargaining increases compensation. In addition, 
administrative costs could increase if collective bargaining 
negotiations with employees require more resources than 
interactions that would unfold under current law. Although 
implementing H.R. 6538 could increase VHA's personnel costs, 
CBO has no basis upon which to estimate the likelihood or 
potential magnitude of those effects.
    The CBO staff contact for this estimate is Logan Smith. The 
estimate was reviewed by Christina Hawley Anthony, Deputy 
Director of Budget Analysis.

                                         Phillip L. Swagel,
                             Director, Congressional Budget Office.

                       Federal Mandates Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, Public Law (P.L.) 104-4 is inapplicable to 
H.R. 6538.

                      Advisory Committee Statement

    No advisory committees within the meaning of Section 5(b) 
of the Federal Advisory Committee Act would be created by H.R. 
6538.

                  Applicability to Legislative Branch

    The Committee finds that H.R. 6538 does not relate to the 
terms and conditions of employment or access to public services 
or accommodations within the meaning of section 102(b)(3) of 
the Congressional Accountability Act.

              Statement on Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the 
House of Representatives, the Committee finds no provision of 
H.R. 6538 would establish or reauthorize a program of the 
Federal Government known to be duplicative of another Federal 
program, a program that was included in any report from the 
Government Accountability Office to Congress pursuant to 
section 21 of P.L. 111-39, or a program related to a program 
identified in the most recent Catalog of Federal Domestic 
Assistance.

             Section-by-Section Analysis of the Legislation


Section 1: Short title

    This section would establish the short title of the bill as 
the ``VA Correct Compensation Act of 2023.''

Section 2: Definition of ``establishment, determination, or adjustment 
        of employee compensation'' for purposes of the collective 
        bargaining of certain Department of Veterans Affairs employees

    This section would amend 38 U.S.C. Sec. 7422(c). First, 
this section would make technical changes to 38 U.S.C. 
Sec. 7422(c) by labeling 38 U.S.C. Sec. 7422(c) as ``In this 
section'' and creating two subsections, section 7422(c)(1) and 
section 7422(c)(2).
    Section 7422(c)(1) would define the term ``professional 
conduct or competence'' to mean any of the following: ``(A) 
Direct Patient Care. (B) Clinical Competence.'' This definition 
would be the same as the definition of ``professional conduct 
or competence'' currently in 38 U.S.C. Sec. 7422.
    Section 7422(c)(2) would add a new definition to 38 U.S.C. 
Sec. 7422(c). This section would define the term 
``establishment, determination, or adjustment of employee 
compensation'' as ``setting a rate of pay as required by 
applicable law, rule and regulation'' and make clear the term 
does not include ``a grievance challenging whether an employee 
described in 38 U.S.C. Sec. 7422(b) has received the correct 
compensation as required by law, rule, regulation, or binding 
agreement.''

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter proposed is shown in roman):

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 38, UNITED STATES CODE




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PART V--BOARDS, ADMINISTRATIONS, AND SERVICES

           *       *       *       *       *       *       *


CHAPTER 74--VETERANS HEALTH ADMINISTRATION--PERSONNEL

           *       *       *       *       *       *       *



SUBCHAPTER II--COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION

           *       *       *       *       *       *       *



Sec. 7422. Collective bargaining

  (a) Except as otherwise specifically provided in this title, 
the authority of the Secretary to prescribe regulations under 
section 7421 of this title is subject to the right of Federal 
employees to engage in collective bargaining with respect to 
conditions of employment through representatives chosen by them 
in accordance with chapter 71 of title 5 (relating to labor-
management relations).
  (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 under 
this title.
  [(c) For purposes of this section, the term ``professional 
conduct or competence'' means any of the following:
          [(1) Direct patient care.
          [(2) Clinical competence.]
  (c) In this section:
          (1) The term ``professional conduct or competence'' 
        means any of the following:
                  (A) Direct patient care.
                  (B) Clinical competence.
          (2) The term ``establishment, determination, or 
        adjustment of employee compensation''--
                  (A) means setting a rate of pay as required 
                by applicable law, rule, or regulation; and
                  (B) does not include a grievance challenging 
                whether an employee described in section 
                7421(b) of this title has received the correct 
                compensation as required by law, rule, 
                regulation, or binding agreement.
  (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 under this title shall be decided by 
the Secretary and is not itself subject to collective 
bargaining and may not be reviewed by any other agency.
  (e) A petition for judicial review or petition for 
enforcement under section 7123 of title 5 in any case involving 
employees described in section 7421(b) of this title or arising 
out of the applicability of chapter 71 of title 5 to employees 
in those positions, shall be taken only in the United States 
Court of Appeals for the District of Columbia Circuit.

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