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115th Congress    }                                 {    Rept. 115-146
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                 {           Part 1

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



 
                       VET PROTECTION ACT OF 2017

                                _______
                                

  May 23, 2017.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Roe of Tennessee, from the Committee on Veterans' Affairs, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1461]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 1461) to amend title 38, United States Code, to 
require the Secretary of Veterans Affairs to submit an annual 
report to Congress relating to the use of official time by 
employees of the Department of Veterans Affairs, to limit the 
instances in which official time may be granted for certain 
purposes to employees of the Department, and for other 
purposes, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     4
Background and Need for Legislation..............................     4
Hearings.........................................................     9
Subcommittee Consideration.......................................     9
Committee Consideration..........................................     9
Committee Votes..................................................    11
Committee Correspondence.........................................    15
Committee Oversight Findings.....................................    17
Statement of General Performance Goals and Objectives............    17
Earmarks and Tax and Tariff Benefits.............................    17
Committee Cost Estimate..........................................    17
Budget Authority and Congressional Budget Office Estimate........    17
Federal Mandates Statement.......................................    18
Advisory Committee Statement.....................................    18
Constitutional Authority Statement...............................    19
Applicability to Legislative Branch..............................    19
Statement on Duplication of Federal Programs.....................    19
Disclosure of Directed Rulemaking................................    19
Section-by-Section Analysis of the Legislation...................    19
Changes in Existing Law Made by the Bill as Reported.............    21
Dissenting Views.................................................    29

                               Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Veterans, Employees, and Taxpayers 
Protection Act of 2017'' or the ``VET Protection Act of 2017''.

SEC. 2. LABOR MANAGEMENT IN DEPARTMENT OF VETERANS AFFAIRS.

  (a) In General.--Chapter 7 of title 38, United States Code, is 
amended by adding at the end the following new subchapter:

                   ``SUBCHAPTER III--LABOR MANAGEMENT

``Sec. 741. Records on use of official time

  ``(a) Tracking of Official Time.--The Secretary shall track the use 
of official time by employees of the Department of Veterans Affairs in 
a manner that accounts for such time accurately and to a specific 
degree without the use of estimates or ranges of time.
  ``(b) Annual Report.--(1) Not later than December 31 of each year, 
the Secretary shall submit to the Office of Personnel Management and 
the Committees on Veterans' Affairs of the House of Representatives and 
the Senate a report on the use of official time by employees of the 
Department during the most recently ended fiscal year.
  ``(2) Each report under paragraph (1) shall include, with respect to 
the fiscal year covered by the report, the following information:
          ``(A) The total amount of official time granted to employees.
          ``(B) The total amount of official time expended and the 
        amount of official time expended per employee for term 
        negotiations, mid-term negotiations, general labor-management 
        relations, and dispute resolution.
          ``(C) The specific types of activities or purposes for which 
        official time was granted, and the impact which the granting of 
        such official time for such activities or purposes had on the 
        operations of the Department.
          ``(D) The total number of employees to whom official time was 
        granted, and, of that total, the number who were not engaged in 
        any activities or purposes except activities or purposes 
        involving the use of official time.
          ``(E) The total annual salary, job title, and amount of 
        official time afforded to any employee.
          ``(F) A description of any room or space designated at the 
        Department where official time activities will be conducted, 
        including the square footage of any such room or space.
          ``(G) A list of any employee granted a waiver under section 
        742(d) and justification for each such waiver.
  ``(c) Definition of Official Time.--For purposes of this section, the 
term `official time' means any period of time--
          ``(1) which may be granted to an employee under chapter 71 of 
        title 5 (including a collective bargaining agreement entered 
        into under such chapter) or chapter 74 of this title to perform 
        representational or consultative functions; and
          ``(2) during which the employee would otherwise be in a duty 
        status.

``Sec. 742. Limitations on use of official time for certain purposes 
                    and individuals

  ``(a) Political Activities and Lobbying.--Notwithstanding section 
7131 of title 5 or any other provision of law, any employee of the 
Department may not use official time to carry out political activities 
or activities relating to lobbying.
  ``(b) Prohibition on Use of Official Time by Certain Employees.--The 
following employees of the Department may not use official time for any 
purpose:
          ``(1) Any employee appointed under section 7401(1).
          ``(2) Any employee with an annual rate of basic pay equal to 
        or greater than $100,000.
          ``(3) Any employee who is serving a probationary period.
  ``(c) Limitation on All Employees.--Any employee of the Department 
not covered by subsection (b) may spend no more than 25 percent of the 
time such employee would otherwise be in a duty status on official 
time.
  ``(d) Waiver.--(1) The Secretary may waive the requirements of 
subsection (b) or (c) with respect to an employee of the Department if 
the Secretary certifies, in writing, that the waiver is reasonable, 
necessary, and in the best interests of veterans.
  ``(2) The authority provided to the Secretary under this subsection 
shall not be subject to bargaining under this title or chapter 71 of 
title 5, and the exercise of, or failure to exercise, such authority 
shall not be an unfair labor practice under this title or such chapter.
  ``(e) Definition of Official Time.--For purposes of this section, the 
term `official time' has the meaning given that term in section 741(c).

``Sec. 743. Termination of collection of dues

  ``Notwithstanding section 7115 of title 5, any exclusive bargaining 
agreement entered into pursuant to chapter 71 of such title by the 
Department shall provide that an employee of the Department may 
terminate a voluntary allotment for the payment of dues at any time. 
Any deductions for dues made pursuant to such allotment shall cease 
beginning on the first pay period after the termination is made.''.
  (b) Applicability.--Sections 742 and 743 of title 38, United States 
Code, as added by subsection (a), shall apply with respect to any 
collective bargaining agreement entered into before, on, or after the 
date of enactment of this Act.
  (c) Clerical Amendment.--The table of sections at the beginning of 
such chapter is amended by adding at the end the following:

                   ``subchapter iii--labor management

``741. Records on use of official time.
``742. Limitations on use of official time for certain purposes and 
individuals.
``743. Termination of collection of dues.''.

SEC. 3. REQUIRED PROBATIONARY PERIOD FOR NEW EMPLOYEES OF DEPARTMENT OF 
                    VETERANS AFFAIRS.

  (a) Probationary Period.--
          (1) In general.--Chapter 7 of title 38, United States Code, 
        is further amended by inserting after section 717 the following 
        new section:

``Sec. 719. Probationary period for employees

  ``(a) In General.--Notwithstanding sections 3321 and 3393(d) of title 
5, the appointment of a covered employee shall become final only after 
such employee has served a probationary period of 2 years.
  ``(b) Covered Employee.--In this section, the term ``covered 
employee'--
          ``(1) means any individual--
                  ``(A) appointed to a permanent position within the 
                competitive service at the Department; or
                  ``(B) appointed as a career appointee (as that term 
                is defined in section 3132(a)(4) of title 5) within the 
                Senior Executive Service at the Department; and
          ``(2) does not include any individual with a probationary 
        period prescribed by section 7403 of this title.
  ``(c) Permanent Hires.--Not later than 90 days before the expiration 
of a covered employee's probationary period under subsection (a), the 
supervisor of the employee shall determine whether the appointment 
becomes final based on regulations prescribed for such purpose by the 
Secretary.
  ``(d) Application.--With respect to any individual described in 
subsection (b)(1)(A) and to whom this section applies, sections 7501(1) 
and 7511(a)(1)(A)(ii) of title 5 shall be applied to such individual by 
substituting `completed 2 years' for `completed 1 year' in each 
instance it appears.''.
          (2) Clerical and conforming amendments.--
                  (A) Clerical.--The table of sections at the beginning 
                of such chapter, as amended by section 2, is further 
                amended by inserting after the item relating to section 
                717 the following new item:

``719. Probationary period for employees.''.

                  (B) Conforming.--Title 5, United States Code, is 
                amended--
                          (i) in section 3321(c)--
                                  (I) by striking ``Service, or'' and 
                                inserting ``Service,''; and
                                  (II) by inserting at the end before 
                                the period the following: ``, or any 
                                individual covered by section 719 of 
                                title 38'';
                          (ii) in section 3393(d), by inserting at the 
                        end before the period the following: ``or 
                        section 719 of title 38'';
                          (iii) in sections 7501(1) and 
                        7511(a)(1)(A)(ii), by inserting ``or section 
                        719 of title 38'' after ``title 10'' in each 
                        instance it appears; and
                          (iv) in section 7541(1)(A)--
                                  (I) by striking ``title or'' and 
                                inserting ``title,''; and
                                  (II) by inserting at the end before 
                                the semicolon the following: ``, or 
                                section 719 of title 38''.
  (b) Application.--Section 719 of title 38, United States Code, as 
added by subsection (a)(1), shall apply to any covered employee (as 
that term is defined in subsection (b) of such section 719, as so 
added) appointed after the date of the enactment of this Act.

                          Purpose and Summary

     H.R. 1461, the ``Veterans, Employees and Taxpayers 
Protection Act of 2017'' or the ``VET Protection Act of 2017,'' 
was introduced by Representative Jodey Arrington of Texas, 
Chairman of the Subcommittee on Economic Opportunity of the 
House Committee on Veterans' Affairs, on March 9, 2017. H.R. 
1461, as amended, would require the Secretary of the U.S. 
Department of Veterans Affairs (VA) to track VA employees' use 
of official time on activities authorized by statute and by 
collective bargaining agreements and submit an annual report on 
its use to Congress. The bill would also prohibit doctors, 
registered nurses, physician assistants and other healthcare 
providers and high level VA employees from using any official 
time, and would restrict any other VA employee from spending 
more than 25% of their time on official time. The bill would 
also authorize VA employees to stop paying union dues at any 
time. Finally, the probationary period for all new VA employees 
would be expanded to two years.

                  Background and Need for Legislation


Section 1. Short title

    This section provides the short title of the bill.

Section 2. Labor Management in Department of Veterans Affairs

    The Federal Service Labor-Management Statute authorizes 
federal employees to join public sector unions and to 
collectively bargain with agency management. This statute also 
specifically authorizes the use of official time for unions, 
which allows an employee to work on approved union activities 
and bargaining while receiving their federal pay and benefits 
as if they are in a duty status. The statute authorizes the use 
of official time for the negotiation of collective bargaining 
agreements, attendance at impasse proceedings, and 
participation in other activities of the Federal Labor 
Relations Authority.\1\ Unions and agencies can also negotiate 
the use of official time for other purposes under the condition 
that both parties agree it is ``reasonable, necessary, and in 
the public interest.''\2\ Title 5 of the United States Code 
(U.S.C.) restricts the use of official time for any internal 
union business including ``the solicitation of membership, 
elections of labor organization officials, and collection of 
dues,''\3\ which must be performed while the employee is in a 
non-duty status.
---------------------------------------------------------------------------
    \1\Section 7131(a) and (c) of title 5 U.S.C.
    \2\Section 7131 (d) of title 5 U.S.C.
    \3\Section 7131 (b) of title 5 U.S.C.
---------------------------------------------------------------------------
    VA currently has five national master collective bargaining 
agreements, which, among other items, set the parameters for 
use of official time by union officials; there are also 
hundreds of agreements at the local level that also dictate the 
use of official time. Most local agreements provide a bank of 
time that can be used for official time at each facility while 
also allowing a certain number of VA employees to spend 100% of 
their time on official time.
    Since official time was first authorized in the Civil 
Service Reform Act of 1978 (P.L. 95-454), there have been 
multiple reports that have criticized the federal government 
for its inability to track the use of official time across 
federal agencies. In 1979, the U.S. Government Accountability 
Office (GAO) found that 18 of the 26 bargaining units at four 
agencies had no record of official time usage and recommended 
that annual reports on its use be issued by the U.S. Office of 
Personnel Management (OPM).\4\ In 1996, GAO completed a report 
on official time that found, ``VA did not have a time-reporting 
system that would provide the total number of hours used for 
union activities, the cost of the hours, or the number of 
employees using time for union activities for the 
Department.''\5\
---------------------------------------------------------------------------
    \4\U.S. Government Accountability Office, ``Inadequate 
Recordkeeping on Official Time Used for Representational Functions,'' 
FPCD-79-77: Published: Sep 17, 1979. http://www.gao.gov/products/GAO/
FPCD-79-77.
    \5\U.S. Government Accountability Office, ``Federal Labor 
Relations: Official Time Used for Union Activities,'' T-GGD-96-191: 
Published: Sep 11, 1996. http://www.gao.gov/assets/110/106634.pdf.
---------------------------------------------------------------------------
    On February 16, 2017, the Subcommittee on Economic 
Opportunity conducted a joint oversight hearing with the 
Subcommittee on Government Operations of the House Committee on 
Oversight and Government Reform, entitled ``The Use of Official 
Time for Union Activities at the Department of Veterans 
Affairs.'' This hearing highlighted the most recent GAO report 
that was released in February of 2017 on official time, which 
echoed previous GAO reports finding VA's record keeping as 
``inconsistent'' and ``not reliable.''\6\ GAO also found that 
VA does not require a standardized way of tracking official 
time and ``. . . allows facilities to use written records, 
estimates, samples, or surveys of official time hours used, or 
any combination of these methods to determine the amount of 
official time used by employees at their facility.''\7\
---------------------------------------------------------------------------
    \6\U.S. Government Accountability Office, ``UNION ACTIVITIES: VA 
Could Better Track the Amount of Official Time Used by Employees.'' 
GAO-17-105: Published January 24, 2017 https://www.gao.gov/assets/690/
682250.pdf.
    \7\Ibid.
---------------------------------------------------------------------------
    The Committee believes that it is time for VA, to heed four 
decades' worth of GAO recommendations and accurately track 
official time. It defies logic that VA would continue to allow 
the use of ``estimates and samples'' to track taxpayer-funded 
time that is being spent on union-centered activities. The 
Committee expects, and believes that the average taxpayer would 
also expect, more transparency about where tax dollars are 
going when it is funding activities that do not directly serve 
veterans. Therefore, section 2 of this bill would amend chapter 
7 of title 38 U.S.C., and would create a new section 741, which 
would require the VA Secretary to accurately track the use of 
official time at VA and provide an annual report to the House 
and Senate Committees on Veterans' Affairs on its use. The 
report would include the total amount of official time that VA 
authorized in the previous fiscal year, information on the 
employees who are using official time, and a formal description 
of any room or space provided to the union by the Department.
    During the aforementioned February 2017 joint oversight 
hearing on official time, the subcommittees unveiled 
information, which had been previously provided by VA, that 
indicated that in fiscal year (FY) 2015, VA had almost 2,000 
employees who were on some amount of official time and that 344 
of these employees spent 100% of their time on official time 
instead of performing the work they were hired to do. Of these 
344 employees who were on 100% official time, over 50% were 
originally hired by VA to provide direct patient care or 
process veterans' disability benefits. The data also included 
numerous highly paid and highly skilled employees, including 
doctors, nurses and senior staff, making over $100,000 a year 
in their base salary while spending part or all of their time 
on union activities as opposed to the occupation and duties 
they were hired for. The total cost to VA for these employees 
in salaries alone was $22,135,112 in FY2015.
    While the Committee understands that official time can be 
potentially valuable if used appropriately, we believe that 
allowing senior staff and healthcare clinicians to be on 
official time, at the expense of providing care to and serving 
veterans, is not ``reasonable, necessary, and in the public 
interest.'' Employees are not hired by VA to conduct union 
business; they are hired to fulfill the mission of the 
Department by providing benefits and services to veterans. 
While the recent GAO report found that some managers saw some 
value in official time, they also cited difficulty providing 
benefits and services to veterans because they have to re-
schedule or backfill critical positions to cover those 
employees on official time.\8\
---------------------------------------------------------------------------
    \8\Ibid.
---------------------------------------------------------------------------
    To address this issue, section two of the bill would place 
reasonable restrictions on the use of official time at the 
Department. Specifically, the legislation would supersede any 
authorities included in current collective bargaining 
agreements related to official time and would prohibit VA 
physicians, registered nurses, physician assistants, dentists, 
podiatrists, chiropractors, optometrists, probationary 
employees, or any other employee with a base salary of $100,000 
or greater, from using any official time for any purpose. 
Additionally, the bill would restrict every other VA employee 
to spending no more than 25% of their time on official time. 
This change to the law would result in no employee spending 
100% of their time on official time. Both of these restrictions 
would be waivable by the Secretary if he or she certifies that 
such a waiver is reasonable, necessary, and in the best 
interest of veterans. The use of these waivers is at the sole 
discretion of management and would not be subject to collective 
bargaining or claims of unfair labor practices. The Secretary 
would be required to include a list and justification for each 
waiver in the official time report that would be annually sent 
to Congress as required by this section.
    The Committee believes that these are reasonable 
restrictions, which put the mission of the Department and the 
needs of veterans first, while still not restricting the 
overall amount of official time that is negotiated between VA 
and its bargaining units. This section would also clarify that 
official time is not used to carry out political activities or 
lobbying. This would ensure that official time is being use for 
its intended purpose of improving management-labor relations 
and not for political or partisan reasons. The language would 
not restrict employees' first amendment rights but would simply 
state that if they choose to lobby or their union then they 
must do so while in a non-duty status.
    Finally, this section would also provide greater 
flexibility to employees for when they choose to join or leave 
a union at VA. Currently, VA's collective bargaining agreements 
allow for members to join the union at any point and require VA 
to take union dues out of an employee's paycheck each pay 
period and send the funds directly to the union. However, these 
agreements generally limit when an employee can elect to 
terminate this collection of union dues, therefore making it 
difficult for the employee to leave the union. For example, 
VA's current agreement with the American Federation of 
Government Employees (AFGE) requires that if an employee wants 
to terminate their dues collections then the form that is 
required to be filed must ``. . . be submitted to the local 
union during the 10 calendar days ending on the anniversary 
date of his/her original allotment.''\9\ Ultimately, this 
restrictive practice, results in VA employees being able to 
join the union at any point but severely limiting when they can 
actually leave the union.
---------------------------------------------------------------------------
    \9\U.S. Department of Veterans Affairs and American Federation of 
Government Employees Master Agreement, March 2011, Article 45 Section 
6. https://www.va.gov/LMR/docs/Agreements/AFGE/
Master_Agreement_between_DVA_and_AFGE-fin_March_2011.pdf.
---------------------------------------------------------------------------
    The Committee believes that this practice should be changed 
to allow freedom of choice for all employees to join or leave 
any bargaining unit at any time. The current restrictions do 
not appear to benefit the employee but, instead, benefit the 
union and their financial viability by preventing employees 
from stopping the deduction of union dues from their paychecks. 
Therefore, this section would supersede any current collective 
bargaining agreements and would allow any eligible employee to 
join or leave any union at any point.

Section 3. Required probationary period for new employees of Department 
        of Veteran Affairs

    The federal hiring process is very complex and can take 
several months. The probationary period for federal employees 
is intended to be a final checkpoint in a new employee 
screening process. When an individual enters employment at VA, 
and across the federal government, he or she is put on a 
probationary period at the beginning of their employment for 
one year\10\ (except at certain agencies such as the Department 
of Defense, which requires a two-year probationary period). 
Physicians and other clinicians at VA, however, are considered 
to be part of the excepted service and are required to undergo 
a two-year probationary period. An employee's appeal rights are 
greatly diminished during their probationary period, as it is 
meant to be a period of time during which supervisors can fully 
assess the employee's capabilities and aptness for the position 
before that employee becomes a full-fledged civil servant with 
full civil service protections. According to a Merit Systems 
Protection Board report entitled, ``A Call to Action: Improving 
First-Level Supervision of Federal Employees,'' individuals 
need to demonstrate during their probationary period ``why it 
is in the public interest for the government to finalize an 
appointment to the civil service.''\11\ The Committee believes 
that this probationary period is vital to ensuring that VA is 
hiring only the most well-equipped employees. Many reports have 
illustrated this as an issue across the federal government, as 
supervisors do not use this time to thoroughly review an 
individual's performance or assess an employee's potential 
future success at the Department.
---------------------------------------------------------------------------
    \10\Probationary periods are required by statute in section 
3321(a)(1) of title 5 U.S.C. By regulation, OPM has provided for a one 
year probationary period in 5 C.F.R. Sec. 315.801(a).
    \11\U.S. Merit Systems Protection Board, ``A Call to Action: 
Improving First-Level Supervision of Federal Employees'' (Washington, 
D.C.: May 2010).
---------------------------------------------------------------------------
    The Committee also believes that the current one-year 
probationary period is often not sufficient enough to 
accurately assess a new employee's performance and conduct. 
According to a February 2015 GAO report, the supervisor often 
``. . . has not had enough time to observe the individual's 
performance in all critical areas of the job.''\12\ For 
example, training veterans claim examiners can take two to 
three years. Attempting to accurately measure an employee's 
ability within one annual performance assessment cycle is 
nearly unobtainable. The Committee believes that such a small 
window to fully assess a new employee's potential can lead to 
underperformance in the future, which can affect the services 
provided to veterans. The GAO report also found that many 
agencies have utilized extended probationary periods for their 
employees beyond the OPM-required year to address these issues 
and to enhance the quality of their workforce. Similarly, the 
Committee believes that VA needs to have a longer probationary 
period to ensure that only highly qualified and motivated 
employees continue employment at the Department.
---------------------------------------------------------------------------
    \12\U.S. Government Accountability Office ``Federal Workforce: 
Improved Supervision and Better Use of Probationary Periods are Needed 
to Address Substandard Employee Performance,'' http://www.gao.gov/
assets/670/668339.pdf.
---------------------------------------------------------------------------
    In addition to the need for a longer probationary period, 
it is essential that VA supervisors are aware of when an 
employee's probationary period is about to conclude, and when 
they will then be considered a full-time employee with expanded 
civil service protections and appeal rights. The GAO report 
discussed the need for, and some agencies have already 
instituted, an employee's supervisor to make an affirmative 
decision to retain the employee beyond their probationary 
period. The Partnership for Public Service, a smart government, 
nonpartisan think-tank, articulated the need for a supervisor's 
affirmative decision on an employee's continued employment to 
the Committee in numerous meetings. Additionally, they provided 
support for this need in their testimony before the Senate 
Veterans' Affairs Committee by stating, ``As an employee's 
probationary period is coming to a close, we believe managers 
should be required to make an affirmative decision as to 
whether the individual has demonstrated successful performance 
and should continue on past the probationary period.''\13\ Due 
to the fact that it is much more difficult to remove an 
underperforming employee once they have completed their 
probationary period, the Committee believes that it is 
important that a supervisor perform a final review at the end 
of this period, and make a decision on the individual's 
performance and capability for continued employment within VA.
---------------------------------------------------------------------------
    \13\Testimony of Max Stier, President and CEO Partnership for 
Public Service, during a hearing entitled ``Pending Healthcare and 
Benefits Legislation,'' before the Senate Committee on Veterans' 
Affairs, June 24, 2015. http://www.veterans.senate.gov/imo/media/doc/
PPS%20Stier%20Testimony%206.24.15.pdf.
---------------------------------------------------------------------------
    Section 3, therefore, would amend chapter 7 of title 38, 
U.S.C., to extend the probationary period for all new 
competitive service employees within VA to two years. This 
section would also require an employee's supervisor to make an 
affirmative decision 90 days prior to the end of the employee's 
probationary period as to whether the individual's appointment 
within VA should become permanent. The Committee believes this 
will further hold the Department's employees and supervisors 
accountable, as well as ensure a more qualified and highly 
performing workforce.

                                Hearings

    On February 16, 2017, the Subcommittee on Economic 
Opportunity and the Subcommittee on Government Operations of 
the House Committee on Oversight and Government Reform 
conducted an oversight hearing, entitled ``The Use of Official 
Time for Union Activities at the Department of Veterans 
Affairs.'' The following witnesses testified:
          Ms. Cindy Brown Barnes, Director of Education, 
        Workforce and Income Security, U.S. Government 
        Accountability Office; Mr. J. David Cox, Sr., National 
        President, American Federation of Government Employees, 
        AFL-CIO; Mr. Trey Kovacs, Policy Analyst, Competitive 
        Enterprise Institute; and Ms. Kimberly Perkins McLeod, 
        Acting Executive Director for Labor Management 
        Relations, U.S. Department of Veterans Affairs.
    On March 21, 2017, the Subcommittee on Economic Opportunity 
conducted a legislative hearing on H.R. 1461. The following 
witnesses testified:
          Ms. Kimberly Perkins McLeod, Acting Executive 
        Director for Labor Management Relations, U.S. 
        Department of Veterans Affairs who was accompanied by: 
        Mr. Rondy Waye, Human Resources Policy Advisor for the 
        Office of Human Resources and Management, U.S. 
        Department of Veterans Affairs; Ms. Shirley Parker 
        Blommel, President of Local 390, American Federation of 
        Government Employees, AFL-CIO; and Mr. Derk A. Wilcox, 
        Senior Attorney, Mackinac Center for Public Policy.
    The following organizations submitted testimony for the 
record:
          American Federation of Government Employees, AFL-CIO, 
        and National Nurses United.

                       Subcommittee Consideration

    There was no Subcommittee consideration of H.R. 1461, as 
amended.

                        Committee Consideration

    On May 17, 2017, the full Committee met in open markup 
session, a quorum being present, and ordered H.R. 1461, as 
amended, be reported favorably to the U.S. House of 
Representatives by voice vote. During consideration of the 
bill, the following amendments were considered:
          An amendment in the nature of a substitute offered by 
        Representative Jim Banks of Indiana, which struck all 
        after the enacting clause and maintained the underlying 
        bill but added additional reporting requirements to the 
        new section 741 of title 38, U.S.C., that would be 
        created by section two of the bill. The amendment also 
        made additional changes to section two of the bill by 
        prohibiting any employee hired under section 7401(1) of 
        title 38, U.S.C., or who makes $100,000 or more a year 
        from using official time. Finally, the amendment 
        extended the probationary period required in section 
        three of the bill from 18 months to 24 months. The 
        amendment was adopted by a recorded vote of 13 to 11.
          A substitute amendment to the amendment in the nature 
        of a substitute offered by Representative Tim Walz of 
        Minnesota, Ranking Member of the Committee on Veterans' 
        Affairs. The substitute would only retain the reporting 
        requirements in section two of the amendment in the 
        nature of a substitute (with some additional 
        requirements regarding official time that was used for 
        whistleblower protection, reporting of fraud and abuse, 
        implementation of new management directives, and 
        information gathering to support claims of 
        discrimination for a variety of reasons). Additionally, 
        the substitute would completely strike out the 
        limitations on official time and who can use official 
        time and would remove the flexibility for the employee 
        to terminate the deduction of union dues at any time as 
        provided in section two of the underlying amendment in 
        the nature of a substitute. The substitute was defeated 
        by a recorded vote of 10-14.
          An amendment to the amendment in the nature of a 
        substitute offered by Representative Tim Walz of 
        Minnesota, Ranking Member of the Committee on Veterans' 
        Affairs. The amendment would require that any changes 
        made by the underlying amendment in the nature of a 
        substitute would only take effect on the date that is 
        180 days after the Secretary certifies to Congress that 
        any employees who are hired under section 7401 of title 
        38, U.S.C., are appointed to positions that provide 
        direct patient care to veterans. The amendment was 
        defeated by a recorded vote of 10-14.
          An amendment to the amendment in the nature of a 
        substitute offered by Representative Beto O'Rourke of 
        Texas. The amendment would strike the new sections 742 
        and 743 of title 38, U.S.C., as would be created by 
        section two of the underlying amendment in the nature 
        of the substitute. The amendment would also require 
        that, no later than 180 days after the Secretary 
        certifies that the VA Time and Attendance System has 
        been fully implemented, the Comptroller General submit 
        to Congress a report on the use of official time and 
        its effectiveness. The amendment was defeated by a 
        recorded vote of 10-14.
          An amendment to the amendment in the nature of a 
        substitute offered by Representative Mark Takano of 
        California. The amendment would require that any 
        changes made by the underlying amendment in the nature 
        of a substitute would only take effect 180 days after 
        the date in which the Secretary certifies to Congress 
        that all 49,386 vacancies at the Department have been 
        filled. The amendment was defeated by a recorded vote 
        of 10-14.
          An amendment to the amendment in the nature of 
        substitute offered by Representative Mark Takano of 
        California. The amendment would strike section 2(b) of 
        the underlying amendment in the nature of a substitute 
        which states that the new sections 742 and 743 created 
        by the amendment in the nature of a substitute 
        supersede any past, current or future collective 
        bargaining agreements. The amendment would also require 
        VA to report to Congress how the new sections 742 and 
        743 effect the Department's resources and identify any 
        increase in resources needed to carry out these 
        sections and would change the effective date for the 
        sections 742 and 743 so that they would not take effect 
        until VA certifies to Congress that all vacant human 
        resources positions have been filled. The amendment was 
        defeated by a recorded vote of 10-14.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report the legislation and amendments 
thereto. At the full Committee markup of the bill on May 17, 
2017 seven recorded votes were taken:
    An Amendmnent in the Nature of a Substitute to H.R. 1461, 
offered by Representative Jim Banks of Indiana, was agreed to 
by a recorded vote of 13 yeas and 11 nays. The names of the 
Members who voted for and against are as follows:

------------------------------------------------------------------------
             Name                    Yea           Nay         Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman.........            X
Mr. Bilirakis, FL.............            X
Mr. Coffman, CO...............            X
Dr. Wenstrup, OH..............            X
Ms. Radewagen, AS.............            X
Mr. Bost, IL..................                          X
Mr. Poliquin, ME..............            X
Dr. Dunn, FL..................            X
Mr. Arrington, TX.............            X
Mr. Rutherford, FL............            X
Mr. Higgins, LA...............            X
Mr. Bergman, MI...............            X
Mr. Banks, IN.................            X
Ms. Gonzalez-Colon, PR........            X
Mr. Walz, MN, Ranking Member..                          X
Mr. Takano, CA................                          X
Ms. Brownley, CA..............                          X
Ms. Kuster, NH................                          X
Mr. O'Rourke, TX..............                          X
Miss Rice, NY.................                          X
Mr. Correa, CA................                          X
Mr. Sablan, Northern Mariana                            X
 Islands......................
Ms. Esty, CT..................                          X
Mr. Peters, CA................                          X
                               -----------------------------------------
    Total.....................           13            11
------------------------------------------------------------------------

    A Substitute to the Amendment in the Nature of a Substitute 
to H.R. 1461, offered by Ranking Member Tim Walz of Minnesota, 
was not agreed to by a recorded vote of 10 yeas and 14 nays. 
The names of the Members who voted for and against are as 
follows:

------------------------------------------------------------------------
             Name                    Yea           Nay         Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman.........                          X
Mr. Bilirakis, FL.............                          X
Mr. Coffman, CO...............                          X
Dr. Wenstrup, OH..............                          X
Ms. Radewagen, AS.............                          X
Mr. Bost, IL..................                          X
Mr. Poliquin, ME..............                          X
Dr. Dunn, FL..................                          X
Mr. Arrington, TX.............                          X
Mr. Rutherford, FL............                          X
Mr. Higgins, LA...............                          X
Mr. Bergman, MI...............                          X
Mr. Banks, IN.................                          X
Ms. Gonzalez-Colon, PR........                          X
Mr. Walz, MN, Ranking Member..            X
Mr. Takano, CA................            X
Ms. Brownley, CA..............            X
Ms. Kuster, NH................            X
Mr. O'Rourke, TX..............            X
Miss Rice, NY.................            X
Mr. Correa, CA................            X
Mr. Sablan, Northern Mariana              X
 Islands......................
Ms. Esty, CT..................            X
Mr. Peters, CA................            X
                               -----------------------------------------
    Total.....................           10            14
------------------------------------------------------------------------

    An Amendment to the Amendment in the Nature of a Substitute 
to H.R. 1461, offered by Ranking Member Tim Walz of Minnesota, 
was not agreed to by a recorded vote of 10 yeas and 14 nays. 
The names of the Members who voted for and against are as 
follows:

------------------------------------------------------------------------
             Name                    Yea           Nay         Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman.........                          X
Mr. Bilirakis, FL.............                          X
Mr. Coffman, CO...............                          X
Dr. Wenstrup, OH..............                          X
Ms. Radewagen, AS.............                          X
Mr. Bost, IL..................                          X
Mr. Poliquin, ME..............                          X
Dr. Dunn, FL..................                          X
Mr. Arrington, TX.............                          X
Mr. Rutherford, FL............                          X
Mr. Higgins, LA...............                          X
Mr. Bergman, MI...............                          X
Mr. Banks, IN.................                          X
Ms. Gonzalez-Colon, PR........                          X
Mr. Walz, MN Ranking Member...            X
Mr. Takano, CA................            X
Ms. Brownley, CA..............            X
Ms. Kuster, NH................            X
Mr. O'Rourke, TX..............            X
Miss Rice, NY.................            X
Mr. Correa, CA................            X
Mr. Sablan, Northern Mariana              X
 Islands......................
Ms. Esty, CT..................            X
Mr. Peters, CA................            X
                               -----------------------------------------
    Total.....................           10            14
------------------------------------------------------------------------

    An Amendment to the Amendment in the Nature of a Substitute 
to H.R. 1461, offered by Representative Beto O'Rourke of Texas, 
was not agreed to by a recorded vote of 10 yeas and 14 nays. 
The names of the Members who voted for and against are as 
follows:

------------------------------------------------------------------------
             Name                    Yea           Nay         Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman.........                          X
Mr. Bilirakis, FL.............                          X
Mr. Coffman, CO...............                          X
Dr. Wenstrup, OH..............                          X
Ms. Radewagen, AS.............                          X
Mr. Bost, IL..................                          X
Mr. Poliquin, ME..............                          X
Dr. Dunn, FL..................                          X
Mr. Arrington, TX.............                          X
Mr. Rutherford, FL............                          X
Mr. Higgins, LA...............                          X
Mr. Bergman, MI...............                          X
Mr. Banks, IN.................                          X
Ms. Gonzalez-Colon, PR........                          X
Mr. Walz, MN Ranking Member...            X
Mr. Takano, CA................            X
Ms. Brownley, CA..............            X
Ms. Kuster, NH................            X
Mr. O'Rourke, TX..............            X
Miss Rice, NY.................            X
Mr. Correa, CA................            X
Mr. Sablan, Northern Mariana              X
 Islands......................
Ms. Esty, CT..................            X
Mr. Peters, CA................            X
                               -----------------------------------------
    Total.....................           10            14
------------------------------------------------------------------------

    An Amendment to the Amendment in the Nature of a Substitute 
to H.R. 1461, offered by Representative Mark Takano of 
California, was not agreed to by a recorded vote of 10 yeas and 
14 nays. The names of the Members who voted for and against are 
as follows:

------------------------------------------------------------------------
             Name                    Yea           Nay         Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman.........                          X
Mr. Bilirakis, FL.............                          X
Mr. Coffman, CO...............                          X
Dr. Wenstrup, OH..............                          X
Ms. Radewagen, AS.............                          X
Mr. Bost, IL..................                          X
Mr. Poliquin, ME..............                          X
Dr. Dunn, FL..................                          X
Mr. Arrington, TX.............                          X
Mr. Rutherford, FL............                          X
Mr. Higgins, LA...............                          X
Mr. Bergman, MI...............                          X
Mr. Banks, IN.................                          X
Ms. Gonzalez-Colon, PR........                          X
Mr. Walz, MN Ranking Member...            X
Mr. Takano, CA................            X
Ms. Brownley, CA..............            X
Ms. Kuster, NH................            X
Mr. O'Rourke, TX..............            X
Miss Rice, NY.................            X
Mr. Correa, CA................            X
Mr. Sablan, Northern Mariana              X
 Islands......................
Ms. Esty, CT..................            X
Mr. Peters, CA................            X
                               -----------------------------------------
    Total.....................           10            14
------------------------------------------------------------------------

    An Amendment to the Amendment in the Nature of a Substitute 
to H.R. 1461, offered by Representative Mark Takano of 
California, was not agreed to by a recorded vote of 10 yeas and 
14 nays. The names of the Members who voted for and against are 
as follows:

------------------------------------------------------------------------
             Name                    Yea           Nay         Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman.........                          X
Mr. Bilirakis, FL.............                          X
Mr. Coffman, CO...............                          X
Dr. Wenstrup, OH..............                          X
Ms. Radewagen, AS.............                          X
Mr. Bost, IL..................                          X
Mr. Poliquin, ME..............                          X
Dr. Dunn, FL..................                          X
Mr. Arrington, TX.............                          X
Mr. Rutherford, FL............                          X
Mr. Higgins, LA...............                          X
Mr. Bergman, MI...............                          X
Mr. Banks, IN.................                          X
Ms. Gonzalez-Colon, PR........                          X
Mr. Walz, MN Ranking Member...            X
Mr. Takano, CA................            X
Ms. Brownley, CA..............            X
Ms. Kuster, NH................            X
Mr. O'Rourke, TX..............            X
Miss Rice, NY.................            X
Mr. Correa, CA................            X
Mr. Sablan, Northern Mariana              X
 Islands......................
Ms. Esty, CT..................            X
Mr. Peters, CA................            X
                               -----------------------------------------
    Total.....................           10            14
------------------------------------------------------------------------

    H.R. 1461, as amended, was agreed to by a record vote of 13 
yeas and 11 nays. The names of the Members who voted for and 
against are as follows:

------------------------------------------------------------------------
             Name                    Yea           Nay         Present
------------------------------------------------------------------------
Dr. Roe, TN, Chairman.........            X
Mr. Bilirakis, FL.............            X
Mr. Coffman, CO...............            X
Dr. Wenstrup, OH..............            X
Ms. Radewagen, AS.............            X
Mr. Bost, IL..................                          X
Mr. Poliquin, ME..............            X
Dr. Dunn, FL..................            X
Mr. Arrington, TX.............            X
Mr. Rutherford, FL............            X
Mr. Higgins, LA...............            X
Mr. Bergman, MI...............            X
Mr. Banks, IN.................            X
Ms. Gonzalez-Colon, PR........            X
Mr. Walz, MN Ranking Member...                          X
Mr. Takano, CA................                          X
Ms. Brownley, CA..............                          X
Ms. Kuster, NH................                          X
Mr. O'Rourke, TX..............                          X
Miss Rice, NY.................                          X
Mr. Correa, CA................                          X
Mr. Sablan, Northern Mariana                            X
 Islands......................
Ms. Esty, CT..................                          X
Mr. Peters, CA................                          X
                               -----------------------------------------
    Total.....................           13            11
------------------------------------------------------------------------

    A motion by Representative Jodey Arrington of Texas to 
report favorably H.R. 1461, as amended, to the House of 
Representatives was agreed to by voice vote.


                      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 are to provide reasonable changes to VA's 
use of official time and labor-management relations and to 
extend the probationary period for all new VA employees from 12 
months to 24 months.

                  Earmarks and Tax and Tariff Benefits

    H.R. 1461, as amended, 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. 
1461, as amended, prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974.

     Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
for H.R. 1461, as amended, provided by the Congressional Budget 
Office pursuant to section 402 of the Congressional Budget Act 
of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 19, 2017.
Hon. Phil Roe, M.D.,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1461, the VET 
Protection Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dwayne M. 
Wright.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

H.R. 1461--VET Protection Act of 2017

    H.R. 1461 would limit the use of official time by employees 
of the Department of Veterans Affairs (VA) and would require 
the department to track the use of such time by its employees. 
Official time is paid time off from assigned government duties 
to represent a labor union. As part of their, union contracts, 
VA employees can use part or all of their working day, up to a 
contractually agreed upon number of hours per year, to work in 
support of employee unions. Under section 2, no VA employee 
could dedicate more than 25 percent of their work time to such 
purposes, and some VA employees would be completely prohibited 
from using work hours for union related activities. Further, no 
VA employee would be allowed to use official time to engage in 
political activities or activities related to lobbying.
    VA's agreements with employee unions specify the total 
number of hours that may be spent on official time rather than 
the number of people who are authorized to use official time. 
Thus, CBO expects that under the bill, the number of hours 
spent on official time would be spread over a larger number of 
people, but the total hours would not change significantly.
    Section 2 also would require VA to track and provide 
detailed annual reports on the use of official time by 
department employees. VA is in the process of implementing a 
new time and attendance system to track the use of official 
time by VA employees that would meet most of the new 
requirements. In total, CBO estimates that implementing those 
provisions would cost less than $500,000 to prepare new 
regulations and reports over the 2018-2022 period; that 
spending would be subject to the availability of appropriated 
funds.
    Section 3 would extend the probationary period for certain 
VA employees, including those appointed to the senior executive 
service, from one year (or in some cases 18 months) to two 
years. CBO estimates that implementing section 3 would have no 
budgetary effect.
    Enacting H.R. 1461 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. CBO 
estimates that enacting H.R. 1461 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    H.R. 1461 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 H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates regarding H.R. 1461, as amended, prepared by the 
Director of the Congressional Budget Office pursuant to section 
423 of the Unfunded Mandates Reform Act.

                      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. 
1461, as amended.

                   Constitutional Authority Statement

    Pursuant to Article I, section 8 of the United States 
Constitution, H.R. 1461, as amended, is authorized by Congress' 
power to ``provide for the common Defense and general Welfare 
of the United States.''

                  Applicability to Legislative Branch

    The Committee finds that H.R. 1461, as amended, 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 that no provision 
of H.R. 1461, as amended, establishes or reauthorizes 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 Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                   Disclosure of Directed Rulemaking

    Pursuant to section 3(i) of H. Res. 5, 115th Cong. (2017), 
the Committee estimates that section 3(a) of H.R. 1461, as 
amended, would require the VA Secretary to prescribe 
regulations to allow a supervisor to determine if an employee 
completing their probationary period shall have a final 
appointment at the Department.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    Section 1 cites the short title of H.R. 1461 to be the 
``Veterans, Employees, and Taxpayers Protection Act of 2017'' 
or the ``VET Protection Act of 2017''.

Section 2. Labor Management in Department of Veterans Affairs

    Section 2(a) would amend chapter 7 of title 38, U.S.C., to 
create a new subchapter III entitled, ``Labor Management'' and 
would create the following new sections under the new 
subchapter III: section 741 entitled, ``Records on use of 
official time''; section 742 entitled, ``Limitations on use of 
official time for certain purposes and individuals''; and 
section 743 entitled, ``Termination of collection of dues''.
    Sec. 741(a) would require the Secretary to track the use of 
official time by employees of the Department in a manner that 
accounts for such time accurately and to a specific degree 
without the use of estimates or ranges of times.
    Sec. 741(b) would require the Secretary to submit a report 
about employees' use of official time to the House and Senate 
Committees on Veterans' Affairs and the Office of Personnel 
Management no later than December 31st of each year for the 
prior fiscal year. Sec. 741(b) would require the annual report 
from the Secretary to include the following information: the 
total amount of official time granted to employees; the total 
amount of official time expended per employee for term 
negotiations, mid-term negotiations, general labor-management 
relations, and dispute resolution; the specific types of 
activities or purposes for which official time was granted and 
the impact that it had on the operations of the Department; the 
total number of employees whom official time was granted and, 
of that total, the number of this total who were only involved 
in activities involving official time; the total annual salary, 
job title, and amount of official time afforded to any 
employees; a description of the room and space designated by 
the Department for the use of official time activities, 
including the square footage or any such room or space; and a 
list of any employee granted a waiver under the new section 
742(d) of title 38, U.S.C.
    Sec. 741(c) would define the term ``official time'' as any 
period of time which may be granted to an employee under 
chapter 71 of title 5, U.S.C. (including a collective 
bargaining agreement entered into under such chapter) or 
chapter 74 of title 38, U.S.C., to perform representational or 
consultative functions; and during which the employee would 
otherwise be in a duty status.
    Sec. 742 (a) would stipulate that, notwithstanding section 
7131 of title 5, U.S.C. or any other provision of law, no 
employee of the Department may use official time to carry out 
political activities or activities related to lobbying.
    Sec. 742 (b) would prohibit any employee of the Department 
appointed under section 7401(1) of title 38, U.S.C., or with an 
annual rate of basic pay equal to or greater than $100,000, 
from using official time for any purpose.
    Sec. 742(c) would prohibit any employee of the Department 
who is not covered by subsection 742(b) from spending more than 
25 percent of their time that they would otherwise spend in a 
duty status, on official time.
    Sec. 742(d) would allow the Secretary to waive the 
requirements of the new subsections 742(b) and 742(c) of title 
38, U.S.C., if the Secretary certifies, in writing, that the 
waiver is reasonable, necessary, and in the best interest of 
veterans. Sec. 742(d) would also provide that the authority 
granted in this new subsection, shall not be subject to 
collective bargaining under title 38, U.S.C., or chapter 71 of 
title 5, U.S.C., and that the exercise of, or failure to 
exercise, such authority shall not be an unfair labor practice 
under title 38, U.S.C., or title 5, U.S.C.
    Sec. 742(e) would define the term ``official time'' as 
having the same meaning as given in the new subsection 741(c) 
of title 38, U.S.C.
    Sec. 743 would provide that notwithstanding section 7115 of 
title 5, U.S.C., any exclusive bargaining agreement entered 
into pursuant to chapter 51 of title 5, U.S.C., by the 
Department shall provide that an employee may terminate a 
voluntary allotment for the payment of dues at any time. This 
new section would stipulate that any deductions for dues made 
pursuant to such allotment shall cease beginning on the first 
pay period after the termination is made.
    Section 2(b) would provide that the new sections 742 and 
743 of title 38, U.S.C., as added by section 2(a), shall apply 
with respect to any collective bargaining agreement entered 
into before, on, or after the date of enactment of this Act.
    Section 2(c) would make a clerical amendment.

Section 3. Required probationary period for new employees of Department 
        of Veterans Affairs

    Section 3(a)(1) would amend chapter 7 of title 38, U.S.C., 
to create a new section 719 entitled, ``Probationary period for 
employees''.
    Sec. 719(a) would stipulate that, notwithstanding sections 
3321 and 3393(d) of title 5, U.S.C., any appointment of a 
covered employee shall only become final after the employee has 
served a probationary period of two years.
    Sec. 719(b) would define a ``covered employee'' for the new 
section 719 of title 38, U.S.C., as meaning an individual who 
is appointed to a permanent position within the competitive 
service at the Department or who is appointed as a career 
appointee (as defined in section 3132(a)(4) of title 5, U.S.C.) 
within the Senior Executive Service at the Department. 
Subsection 719(b) would provide that a ``covered employee'' 
does not include any individual with a probationary period as 
prescribed by section 7403 of title 38, U.S.C.
    Sec. 719(c) would provide that not later than 90 days prior 
to the expiration of a covered employee's probationary period 
under the new subsection 719(a), the supervisor of the employee 
shall determine whether the appointment becomes final based on 
regulations prescribed by the Secretary.
    Sec. 719(d) would, with respect to any individual described 
in the new subsection 719(b)(1)(A) of title 38, U.S.C., and to 
whom the section applies, apply sections 7501(1) and 
7511(a)(1)(A)(ii) of title 5, U.S.C., to such individual and 
would substitute ``completed 2 years'' for ``completed 1 year'' 
in each instance it appears.
    Section 3(a)(2) would make clerical and conforming 
amendments.
    Section 3(b) would provide that the new section 719 of 
title 38, U.S.C., shall apply to any covered employee appointed 
after the date of enactment of this Act.

         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 italic, existing law in which no change is 
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 italic, and existing law in which no 
change is proposed is shown in roman):

TITLE 38, UNITED STATES CODE

           *       *       *       *       *       *       *



PART I--GENERAL PROVISIONS

           *       *       *       *       *       *       *


                          CHAPTER 7--EMPLOYEES


                 SUBCHAPTER I --GENERAL EMPLOYEE MATTERS

Sec.
701. Placement of employees in military installations.
     * * * * * * *
719. Probationary period for employees.
     * * * * * * *

                    SUBCHAPTER III--LABOR MANAGEMENT

741. Records on use of official time.
742. Limitations on use of official time for certain purposes and 
          individuals.
743. Termination of collection of dues.

           *       *       *       *       *       *       *


SUBCHAPTER I--GENERAL EMPLOYEE MATTERS

           *       *       *       *       *       *       *



Sec. 719. Probationary period for employees

  (a) In General.--Notwithstanding sections 3321 and 3393(d) of 
title 5, the appointment of a covered employee shall become 
final only after such employee has served a probationary period 
of 2 years.
  (b) Covered Employee.--In this section, the term ``covered 
employee''--
          (1) means any individual--
                  (A) appointed to a permanent position within 
                the competitive service at the Department; or
                  (B) appointed as a career appointee (as that 
                term is defined in section 3132(a)(4) of title 
                5) within the Senior Executive Service at the 
                Department; and
          (2) does not include any individual with a 
        probationary period prescribed by section 7403 of this 
        title.
  (c) Permanent Hires.--Not later than 90 days before the 
expiration of a covered employee's probationary period under 
subsection (a), the supervisor of the employee shall determine 
whether the appointment becomes final based on regulations 
prescribed for such purpose by the Secretary.
  (d) Application.--With respect to any individual described in 
subsection (b)(1)(A) and to whom this section applies, sections 
7501(1) and 7511(a)(1)(A)(ii) of title 5 shall be applied to 
such individual by substituting ``completed 2 years'' for 
``completed 1 year'' in each instance it appears.

           *       *       *       *       *       *       *


                    SUBCHAPTER III--LABOR MANAGEMENT

Sec. 741. Records on use of official time

  (a) Tracking of Official Time.--The Secretary shall track the 
use of official time by employees of the Department of Veterans 
Affairs in a manner that accounts for such time accurately and 
to a specific degree without the use of estimates or ranges of 
time.
  (b) Annual Report.--(1) Not later than December 31 of each 
year, the Secretary shall submit to the Office of Personnel 
Management and the Committees on Veterans' Affairs of the House 
of Representatives and the Senate a report on the use of 
official time by employees of the Department during the most 
recently ended fiscal year.
  (2) Each report under paragraph (1) shall include, with 
respect to the fiscal year covered by the report, the following 
information:
          (A) The total amount of official time granted to 
        employees.
          (B) The total amount of official time expended and 
        the amount of official time expended per employee for 
        term negotiations, mid-term negotiations, general 
        labor-management relations, and dispute resolution.
          (C) The specific types of activities or purposes for 
        which official time was granted, and the impact which 
        the granting of such official time for such activities 
        or purposes had on the operations of the Department.
          (D) The total number of employees to whom official 
        time was granted, and, of that total, the number who 
        were not engaged in any activities or purposes except 
        activities or purposes involving the use of official 
        time.
          (E) The total annual salary, job title, and amount of 
        official time afforded to any employee.
          (F) A description of any room or space designated at 
        the Department where official time activities will be 
        conducted, including the square footage of any such 
        room or space.
          (G) A list of any employee granted a waiver under 
        section 742(d) and justification for each such waiver.
  (c) Definition of Official Time.--For purposes of this 
section, the term ``official time'' means any period of time--
          (1) which may be granted to an employee under chapter 
        71 of title 5 (including a collective bargaining 
        agreement entered into under such chapter) or chapter 
        74 of this title to perform representational or 
        consultative functions; and
          (2) during which the employee would otherwise be in a 
        duty status.

Sec. 742. Limitations on use of official time for certain purposes and 
                    individuals

  (a) Political Activities and Lobbying.--Notwithstanding 
section 7131 of title 5 or any other provision of law, any 
employee of the Department may not use official time to carry 
out political activities or activities relating to lobbying.
  (b) Prohibition on Use of Official Time by Certain 
Employees.--The following employees of the Department may not 
use official time for any purpose:
          (1) Any employee appointed under section 7401(1).
          (2) Any employee with an annual rate of basic pay 
        equal to or greater than $100,000.
          (3) Any employee who is serving a probationary 
        period.
  (c) Limitation on All Employees.--Any employee of the 
Department not covered by subsection (b) may spend no more than 
25 percent of the time such employee would otherwise be in a 
duty status on official time.
  (d) Waiver.--(1) The Secretary may waive the requirements of 
subsection (b) or (c) with respect to an employee of the 
Department if the Secretary certifies, in writing, that the 
waiver is reasonable, necessary, and in the best interests of 
veterans.
  (2) The authority provided to the Secretary under this 
subsection shall not be subject to bargaining under this title 
or chapter 71 of title 5, and the exercise of, or failure to 
exercise, such authority shall not be an unfair labor practice 
under this title or such chapter.
  (e) Definition of Official Time.--For purposes of this 
section, the term ``official time'' has the meaning given that 
term in section 741(c).

Sec. 743. Termination of collection of dues

  Notwithstanding section 7115 of title 5, any exclusive 
bargaining agreement entered into pursuant to chapter 71 of 
such title by the Department shall provide that an employee of 
the Department may terminate a voluntary allotment for the 
payment of dues at any time. Any deductions for dues made 
pursuant to such allotment shall cease beginning on the first 
pay period after the termination is made.

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                              ----------                              


TITLE 5, UNITED STATES CODE

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PART III--EMPLOYEES

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SUBPART B--EMPLOYMENT AND RETENTION

           *       *       *       *       *       *       *


CHAPTER 33--EXAMINATION, SELECTION, AND PLACEMENT

           *       *       *       *       *       *       *



SUBCHAPTER I--EXAMINATION, CERTIFICATION, AND APPOINTMENT

           *       *       *       *       *       *       *



Sec. 3321. Competitive service; probationary period

  (a) The President may take such action, including the 
issuance of rules, regulations, and directives, as shall 
provide as nearly as conditions of good administration warrant 
for a period of probation--
          (1) before an appointment in the competitive service 
        becomes final; and
          (2) before initial appointment as a supervisor or 
        manager becomes final.
  (b) An individual--
          (1) who has been transferred, assigned, or promoted 
        from a position to a supervisory or managerial 
        position, and
          (2) who does not satisfactorily complete the 
        probationary period under subsection (a)(2) of this 
        section,
shall be returned to a position of no lower grade and pay than 
the position from which the individual was transferred, 
assigned, or promoted. Nothing in this section prohibits an 
agency from taking an action against an individual serving a 
probationary period under subsection (a)(2) of this section for 
cause unrelated to supervisory or managerial performance.
  (c) Subsections (a) and (b) of this section shall not apply 
with respect to appointments in the Senior Executive Service or 
the Federal Bureau of Investigation and Drug Enforcement 
Administration Senior Executive [Service, or] Service, any 
individual covered by section 1599e of title 10, or any 
individual covered by section 719 of title 38.

           *       *       *       *       *       *       *


 SUBCHAPTER VIII--APPOINTMENT, REASSIGNMENT, TRANSFER, AND DEVELOPMENT 
IN THE SENIOR EXECUTIVE SERVICE

           *       *       *       *       *       *       *



Sec. 3393. Career appointments

  (a) Each agency shall establish a recruitment program, in 
accordance with guidelines which shall be issued by the Office 
of Personnel Management, which provides for recruitment of 
career appointees from--
          (1) all groups of qualified individuals within the 
        civil service; or
          (2) all groups of qualified individuals whether or 
        not within the civil service.
  (b) Each agency shall establish one or more executive 
resources boards, as appropriate, the members of which shall be 
appointed by the head of the agency from among employees of the 
agency or commissioned officers of the uniformed services 
serving on active duty in such agency. The boards shall, in 
accordance with merit staffing requirements established by the 
Office, conduct the merit staffing process for career 
appointees, including--
          (1) reviewing the executive qualifications of each 
        candidate for a position to be filled by a career 
        appointee; and
          (2) making written recommendations to the appropriate 
        appointing authority concerning such candidates.
  (c)(1) The Office shall establish one or more qualifications 
review boards, as appropriate. It is the function of the boards 
to certify the executive qualifications of candidates for 
initial appointment as career appointees in accordance with 
regulations prescribed by the Office. Of the members of each 
board more than one-half shall be appointed from among career 
appointees. Appointments to such boards shall be made on a non-
partisan basis, the sole selection criterion being the 
professional knowledge of public management and knowledge of 
the appropriate occupational fields of the intended appointee.
  (2) The Office shall, in consultation with the various 
qualification review boards, prescribe criteria for 
establishing executive qualifications for appointment of career 
appointees. The criteria shall provide for--
          (A) consideration of demonstrated executive 
        experience;
          (B) consideration of successful participation in a 
        career executive development program which is approved 
        by the Office; and
          (C) sufficient flexibility to allow for the 
        appointment of individuals who have special or unique 
        qualities which indicate a likelihood of executive 
        success and who would not otherwise be eligible for 
        appointment.
  (d) An individual's initial appointment as a career appointee 
shall become final only after the individual has served a 1-
year probationary period as a career appointee. The preceding 
sentence shall not apply to any individual covered by section 
1599e of title 10 or section 719 of title 38.
  (e) Each career appointee shall meet the executive 
qualifications of the position to which appointed, as 
determined in writing by the appointing authority.
  (f) The title of each career reserved position shall be 
published in the Federal Register.
  (g) A career appointee may not be removed from the Senior 
Executive Service or civil service except in accordance with 
the applicable provisions of sections 1215,, 3592, 3595, 7532, 
or 7543 of this title.

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SUBPART F--LABOR-MANAGEMENT AND EMPLOYEE RELATIONS

           *       *       *       *       *       *       *


CHAPTER 75--ADVERSE ACTIONS

           *       *       *       *       *       *       *



              SUBCHAPTER I--SUSPENSION FOR 14 DAYS OR LESS


Sec. 7501. Definitions

   For the purpose of this subchapter--
          (1) ``employee'' means an individual in the 
        competitive service who is not serving a probationary 
        or trial period under an initial appointment or, except 
        as provided in section 1599e of title 10 or section 719 
        of title 38, who has completed 1 year of current 
        continuous employment in the same or similar positions 
        under other than a temporary appointment limited to 1 
        year or less; and
          (2) ``suspension'' means the placing of an employee, 
        for disciplinary reasons, in a temporary status without 
        duties and pay.

           *       *       *       *       *       *       *


Sec. 7511. Definitions; application

  (a) For the purpose of this subchapter--
          (1) ``employee'' means--
                  (A) an individual in the competitive 
                service--
                          (i) who is not serving a probationary 
                        or trial period under an initial 
                        appointment; or
                          (ii) except as provided in section 
                        1599e of title 10 or section 719 of 
                        title 38, who has completed 1 year of 
                        current continuous service under other 
                        than a temporary appointment limited to 
                        1 year or less;
                  (B) a preference eligible in the excepted 
                service who has completed 1 year of current 
                continuous service in the same or similar 
                positions--
                          (i) in an Executive agency; or
                          (ii) in the United States Postal 
                        Service or Postal Regulatory 
                        Commission; and
                  (C) an individual in the excepted service 
                (other than a preference eligible)--
                          (i) who is not serving a probationary 
                        or trial period under an initial 
                        appointment pending conversion to the 
                        competitive service; or
                          (ii) who has completed 2 years of 
                        current continuous service in the same 
                        or similar positions in an Executive 
                        agency under other than a temporary 
                        appointment limited to 2 years or less;
          (2) ``suspension'' has the same meaning as set forth 
        in section 7501(2) of this title;
          (3) ``grade'' means a level of classification under a 
        position classification system;
          (4) ``pay'' means the rate of basic pay fixed by law 
        or administrative action for the position held by an 
        employee; and
          (5) ``furlough'' means the placing of an employee in 
        a temporary status without duties and pay because of 
        lack of work or funds or other nondisciplinary reasons.
  (b) This subchapter does not apply to an employee--
          (1) whose appointment is made by and with the advice 
        and consent of the Senate;
          (2) whose position has been determined to be of a 
        confidential, policy-determining, policy-making or 
        policy-advocating character by--
                  (A) the President for a position that the 
                President has excepted from the competitive 
                service;
                  (B) the Office of Personnel Management for a 
                position that the Office has excepted from the 
                competitive service; or
                  (C) the President or the head of an agency 
                for a position excepted from the competitive 
                service by statute;
          (3) whose appointment is made by the President;
          (4) who is receiving an annuity from the Civil 
        Service Retirement and Disability Fund, or the Foreign 
        Service Retirement and Disability Fund, based on the 
        service of such employee;
          (6) who is a member of the Foreign Service, as 
        described in section 103 of the Foreign Service Act of 
        1980;
          (7) whose position is within the Central Intelligence 
        Agency or the Government Accountability Office;
          (8) whose position is within the United States Postal 
        Service, the Postal Regulatory Commission, the Panama 
        Canal Commission, the Tennessee Valley Authority, the 
        Federal Bureau of Investigation, an intelligence 
        component of the Department of Defense (as defined in 
        section 1614 of title 10), or an intelligence activity 
        of a military department covered under subchapter I of 
        chapter 83 of title 10, unless subsection (a)(1)(B) of 
        this section or section 1005(a) of title 39 is the 
        basis for this subchapter's applicability;
          (9) who is described in section 5102(c)(11) of this 
        title; or
          (10) who holds a position within the Veterans Health 
        Administration which has been excluded from the 
        competitive service by or under a provision of title 
        38, unless such employee was appointed to such position 
        under section 7401(3) of such title.
  (c) The Office may provide for the application of this 
subchapter to any position or group of positions excepted from 
the competitive service by regulation of the Office which is 
not otherwise covered by this subchapter.

           *       *       *       *       *       *       *


                 SUBCHAPTER V--SENIOR EXECUTIVE SERVICE


Sec. 7541. Definitions

   For the purpose of this subchapter--
          (1) ``employee'' means a career appointee in the 
        Senior Executive Service who--
                  (A) has completed the probationary period 
                prescribed under section 3393(d) of this [title 
                or] title, section 1599e of title 10, or 
                section 719 of title 38; or
                  (B) was covered by the provisions of 
                subchapter II of this chapter immediately 
                before appointment to the Senior Executive 
                Service; and
          (2) ``suspension'' has the meaning set forth in 
        section 7501(2) of this title.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    We have serious concerns over H.R. 1461, the Veterans, 
Employees, and Taxpayers Protection Act of 2017, particularly 
Subsections 742 and 743 of Section 2. Although this bill claims 
to address the shortage of Department of Veterans Affairs (VA) 
employees who are available to perform direct patient care, we 
believe that it is actually a thinly veiled union-busting bill. 
Subsections 742 and 743 of Section 2 would strip away much of 
the VA employees union's ability to improve the workplace for 
all VA employees and the veterans they serve. We believe that 
this bill would, at best, do nothing to alleviate long wait 
times and, at worst, exacerbate long wait times by getting rid 
of vital human resources functions performed by employees on 
official time and by making it harder for the VA to attract the 
qualified employees that it so desperately needs to fill 
current vacancies. In addition, we dissent over the failure of 
this Committee to consider this bill under regular order and 
the rush to bring this bill to a full Committee markup without 
going through the appropriate Subcommittee first.
    We strongly agree with H.R. 1461's goal of examining the 
VA's workforce to find areas where data-backed improvements can 
be made to better serve veterans. The VA's current failure to 
sufficiently track how employees are spending official time and 
its current lack of understanding of the effects of official 
time are problems that need to be addressed. This is why we 
offered three amendments during the full-Committee markup that 
would have strengthened some of the reporting requirements in 
H.R. 1461 and required the VA to examine how much it would cost 
to implement H.R. 1461. One amendment would have required a 
Government Accountability Office study on the effects of 
official time at the VA. Another amendment added requirements 
that the VA look at how the use of official time changes from 
year to year and that its reports encompass a broader range of 
official time duties. The third amendment offered in markup 
would have required the VA to study and report on the cost of 
replacing the human resource roles of employees on official 
time if H.R. 1461 were to be passed and compare that cost with 
the current cost of employees on official time. Unfortunately, 
the Majority rejected these common-sense attempts at obtaining 
data on the use of official time at the VA.
    Subsection 742 of Section 2 would place arbitrary 
prohibitions on the use of official time by the following 
employees:
          1. Physicians, dentists, podiatrists, chiropractors, 
        optometrists, registered nurses, physician assistants, 
        and expanded-function dental auxiliaries;
          2. Employees with an annual rate of basic pay equal 
        to or greater than $100,000; and
          3. Employees serving a probationary period.
    It also limits the amount of time any employee at the VA 
may spend on official time to an arbitrary, 25 percent of their 
time. Given the Majority's acknowledgment that the VA is not 
sufficiently tracking official time, we believe it is 
irresponsible to propose sweeping personnel changes in the 
absence of any data or information about the effects of 
official time.
    This is particularly troubling as official time is official 
agency business. Federal employees who volunteer as union 
representatives are already only allowed to use official time 
to perform representational activities. Such activities include 
setting procedures that protect employees from on-the-job 
injuries, enforcing protections from unlawful discrimination, 
providing workers with a voice in determining working 
conditions, assisting whistleblowers, and representing 
employees in grievances and disciplinary actions. These union 
representatives perform these activities for the benefit of all 
employees in a bargaining unit, not just for those bargaining 
unit employees who are members of the union. Additionally, 
these employees are already not allowed to use official time to 
conduct union-specific business such as organizing new members, 
holding internal union meetings, electing union officers, or 
engaging in partisan political activities. Therefore, H.R. 1461 
would, in effect, simply decrease the valuable human resource 
service that these employees provide on official time. This 
would have unknown, and potentially disastrous, consequences 
for the ability of the VA to serve all veterans, particularly 
in the current environment in which it is vitally important for 
the VA to protect whistleblowers, strengthen its workforce, and 
attract more direct care providers.
    By the Majority's own admission, only three physicians 
would be impacted by this legislation. This is in comparison to 
the 108 Medical Doctors and Doctors of Osteopathy serving in 
administrative positions throughout VHA, who do not serve in a 
direct patient care. Such a small number of physicians on 
official time would do little to address the shortage of 
physicians who are available to perform direct patient care and 
decrease wait times. If the Majority were truly interested in 
addressing wait times, there are far more effective ways to 
bring existing providers into patient care roles. This is why, 
in the spirit of the Majority's stated intent for this bill, we 
supported two amendments that would have been more effective in 
decreasing wait times for veterans than H.R. 1461. One 
amendment would have required the VA to move all providers who 
are capable of providing direct patient care into such roles 
instead of just focusing on the miniscule number of providers 
on official time. The other amendment would have required the 
VA to first fill each of its existing 49,386 vacancies, which 
include over 45,000 direct provider vacancies. Unfortunately, 
the Majority rejected each of these proposals as well and 
continued to only focus on the miniscule number of physicians 
on official time.
    Subsection 743 of Section 2 would strip the VA employees 
union of the ability to have some certainty of how much support 
it would have from VA employees. This would in turn strip the 
union of any ability to plan and conduct the activities it 
needs to protect VA employees and protect the VA workplace. 
Given the valuable services that the union provides at the VA 
through working with employees and managers to resolve 
disputes, addressing issues of discrimination and retaliation, 
and effecting improvements in the workplace that benefit all 
employees, this would have devastating consequences for the 
VA's ability to perform its mission to serve all veterans.
    Furthermore, this bill was not considered through regular 
order, and rushed to a full Committee markup. By doing so, the 
Majority missed a key opportunity to develop bipartisan 
legislation that could have brought more clarity on the impacts 
of official time at the VA. We find it unfortunate that the 
Majority rejected common-sense, pragmatic proposals to bring 
about such clarity and chose, in this instance, to attack 
unions rather than the systemic problems that actually 
contribute to the shortage of direct care providers. We remain 
committed to working together to ensure veterans come first.
                                   Timothy J. Walz.
                                   Mark Takano.
                                   Julia Brownley.
                                   Scott H. Peters.
                                   J. Luis Correa.
                                   Gregorio Kilili Camacho Sablan.
                                   Kathleen M. Rice.
                                   Ann M. Kuster.
                                   Elizabeth H. Esty.

                                  [all]