38 U.S.C. § 7422 — Collective bargaining

Page 1231 TITLE 38—VETERANS’ BENEFITS § 7422 ‘‘(3) With respect to subsection (b)(2) of such sec- tion, not later than 18 months after the date of the enactment of this Act.’’ AUDITS AND REPORTS Pub. L. 117–328, div. U, title I, § 112(d), Dec. 29, 2022, 136 Stat. 5414, provided that: ‘‘(1) AUDITS.— ‘‘(A) IN GENERAL.—The Secretary of Veterans Af- fairs shall carry out annual audits of the compliance of medical centers of the Department of Veterans Af- fairs with the matters required by section 7414 of title 38, United States Code, as added by subsection (a). ‘‘(B) CONDUCT OF AUDITS.—In carrying out audits under subparagraph (A), the Secretary— ‘‘(i) may not authorize the medical center being audited to conduct the audit; and ‘‘(ii) may enter into an agreement with another department or agency of the Federal Government or a nongovernmental entity to conduct such au- dits. ‘‘(2) REPORTS.— ‘‘(A) IN GENERAL.—Not later than one year after the date of the enactment of this Act [Dec. 29, 2022], and annually thereafter for five years, the Secretary of Veterans Affairs shall submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report on the audits conducted under paragraph (1). ‘‘(B) ELEMENTS.—Each report submitted under sub- paragraph (A) shall include a summary of the compli- ance by each medical center of the Department of Veterans Affairs with the matters required by section 7414 of title 38, United States Code, as added by sub- section (a). ‘‘(C) INITIAL REPORT.—The Secretary shall include in the first report submitted under subparagraph (A) the following: ‘‘(i) A description of the progress made by the Secretary in implementing section 7414 of title 38, United States Code, as added by subsection (a), in- cluding any matters under such section that the Secretary has not fully implemented. ‘‘(ii) An analysis of the feasibility, advisability, and cost of requiring credentialing employees of the Department to be trained by an outside entity and to maintain a credentialing certification.’’ SUBCHAPTER II—COLLECTIVE BARGAINING AND PERSONNEL ADMINISTRATION § 7421. Personnel administration: in general (a) Notwithstanding any law, Executive order, or regulation, the Secretary shall prescribe by regulation the hours and conditions of employ- ment and leaves of absence of employees ap- pointed under any provision of this title in posi- tions in the Veterans Health Administration listed in subsection (b). (b) Subsection (a) refers to the following posi- tions: (1) Physicians. (2) Dentists. (3) Podiatrists. (4) Optometrists. (5) Registered nurses. (6) Physician assistants. (7) Expanded-duty dental auxiliaries. (8) Chiropractors. (9) Any position for which the employee is appointed under section 7306 or 7401(4) of this title. (Added Pub. L. 102–40, title II, § 202, May 7, 1991, 105 Stat. 200; amended Pub. L. 108–170, title III, § 302(g), Dec. 6, 2003, 117 Stat. 2058; Pub. L. 117–168, title IX, § 906(c)(1), Aug. 10, 2022, 136 Stat. 1812.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 4108(a) of this title prior to the repeal of that section as part of the complete revision of chap- ter 73 of this title by Pub. L. 102–40. AMENDMENTS 2022—Subsec. (a). Pub. L. 117–168, § 906(c)(1)(A), sub- stituted ‘‘this title’’ for ‘‘this chapter’’. Subsec. (b)(9). Pub. L. 117–168, § 906(c)(1)(B), added par. (9). 2003—Subsec. (b)(8). Pub. L. 108–170 added par. (8). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2003 AMENDMENT Amendment by Pub. L. 108–170 effective at end of 180- day period beginning on Dec. 6, 2003, see section 302(h) of Pub. L. 108–170, set out as a note under section 7316 of this title. TREATMENT OF PRIOR LEAVE BALANCES Pub. L. 117–168, title IX, § 906(c)(5), Aug. 10, 2022, 136 Stat. 1813, provided that: ‘‘Notwithstanding any other provision of law, the Secretary [of Veterans Affairs] may adjust the leave balance and carryover leave bal- ance of any employee described in section 7421(b)(9) of title 38, United States Code, as amended by paragraph (1)(B), to ensure any leave accrued or carried over be- fore the date of the enactment of this Act [Aug. 10, 2022] remains available to such employee.’’ PRESERVATION OF EXISTING COLLECTIVE-BARGAINING ARRANGEMENTS AND PENDING ACTIONS Pub. L. 102–40, title II, § 205, May 7, 1991, 105 Stat. 207, provided that: ‘‘(a) EXISTING COLLECTIVE-BARGAINING ARRANGE- MENTS.—Any determination under chapter 71 of title 5, United States Code, of a collective bargaining unit within the Veterans Health Administration of the De- partment of Veterans Affairs, and any recognition under that chapter of an employee labor organization as the exclusive bargaining representative for employ- ees in a collective bargaining unit of the Department of Veterans Affairs, that is in effect on the date of the en- actment of this Act [May 7, 1991] shall not be affected by the amendments made by this Act [see Tables for classification] and shall continue in effect in accord- ance with the terms of such determination or regula- tion. ‘‘(b) PENDING CASES.—With respect to cases pending on the date of the enactment of this Act [May 7, 1991], or those cases which are brought before the establish- ment of either an administrative grievance procedure pursuant to section 7463 of title 38, United States Code (as added by the amendments made by this title), or a negotiated grievance procedure established under a col- lective bargaining agreement, such cases shall proceed in the same manner as they would have if this Act [see Tables for classification] had not been enacted.’’ § 7422. Collective bargaining (a) Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment through represent- atives chosen by them in accordance with chap- ter 71 of title 5 (relating to labor-management relations). Page 1232 TITLE 38—VETERANS’ BENEFITS § 7423 (b) Such collective bargaining (and any griev- ance procedures provided under a collective bar- gaining agreement) in the case of employees de- scribed in section 7421(b) of this title may not cover, or have any applicability to, any matter or question concerning or arising out of (1) pro- fessional conduct or competence, (2) peer review, or (3) the establishment, determination, or ad- justment of employee compensation under this title. (c) For purposes of this section, the term ‘‘pro- fessional conduct or competence’’ means any of the following: (1) Direct patient care. (2) Clinical competence. (d) An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the estab- lishment, determination, or adjustment of em- ployee compensation under this title shall be de- cided by the Secretary and is not itself subject to collective bargaining and may not be re- viewed by any other agency. (e) A petition for judicial review or petition for enforcement under section 7123 of title 5 in any case involving employees described in sec- tion 7421(b) of this title or arising out of the ap- plicability of chapter 71 of title 5 to employees in those positions, shall be taken only in the United States Court of Appeals for the District of Columbia Circuit. (Added Pub. L. 102–40, title II, § 202, May 7, 1991, 105 Stat. 200.) § 7423. Personnel administration: full-time em- ployees (a)(1) Except as provided in paragraph (2), the hours of employment in carrying out respon- sibilities under this title of any employee who is appointed in the Administration under any pro- vision of this chapter on a full-time basis in a position listed in section 7421(b) of this title (other than an intern or resident appointed pur- suant to section 7406 of this title) and who ac- cepts responsibilities for carrying out profes- sional services for remuneration other than those assigned under this title shall consist of not less than 80 hours in a biweekly pay period (as that term is used in section 5504 of title 5). (2)(A) Upon the advance written request of a covered physician, the Secretary may modify the hours of employment for a physician ap- pointed in the Administration under any provi- sion of this chapter on a full-time basis to be more or less than 80 hours in a biweekly pay pe- riod, subject to the requirements in subpara- graph (B). For the purpose of determining pay, such a physician shall be deemed to have a bi- weekly schedule of 80 hours of employment. (B) A physician with an irregular work sched- ule established under subparagraph (A) shall be obligated to account for at least 2,080 hours of employment (through performance of work or use of leave or paid time off) in a calendar year. (C) The Secretary may prescribe regulations to implement this paragraph, including regula- tions making adjustments to address the annual hours requirement for physicians who are cov- ered by this paragraph for only a portion of a calendar year. (D) The Secretary may exclude from the re- quirements of paragraph (1) employees hired under section 7306 or 7401(4) of this title or for a position described in section 7401(1) of this title that the Secretary has determined is of equiva- lent rank to a Senior Executive Service position (as such term is defined in section 3132(a) of title 5). (b) A person covered by subsection (a) may not do any of the following: (1) Teach or provide consultative services at any affiliated institution if such teaching or consultation will, because of its nature or du- ration, conflict with such person’s responsibil- ities under this title. (2) Accept payment under any insurance or assistance program established under title XVIII or XIX of the Social Security Act or under chapter 55 of title 10 for professional services rendered by such person while car- rying out such person’s responsibilities under this title. (3) Accept from any source, with respect to any travel performed by such person in the course of carrying out such person’s respon- sibilities under this title, any payment or per diem for such travel, other than as provided for in section 4111 of title 5. (4) Request or permit any individual or orga- nization to pay, on such person’s behalf for in- surance insuring such person against mal- practice claims arising in the course of car- rying out such person’s responsibilities under this title or for such person’s dues or similar fees for membership in medical or dental soci- eties or related professional associations, ex- cept where such payments constitute a part of such person’s remuneration for the perform- ance of professional responsibilities permitted under this section, other than those carried out under this title. (5) Perform, in the course of carrying out such person’s responsibilities under this title, professional services for the purpose of gener- ating money for any fund or account which is maintained by an affiliated institution for the benefit of such institution, or for such person’s personal benefit, or both. (c) In the case of any fund or account de- scribed in subsection (b)(5) that was established before September 1, 1973— (1) the affiliated institution shall submit semiannually an accounting to the Secretary and to the Comptroller General of the United States with respect to such fund or account and shall maintain such fund or account sub- ject to full public disclosure and audit by the Secretary and the Comptroller General for a period of three years or for such longer period as the Secretary shall prescribe, and (2) no person in a position specified in para- graph (1)(B) may receive any cash from amounts deposited in such fund or account de- rived from services performed before that date. (d) As used in this section: (1) The term ‘‘affiliated institution’’ means a medical school or other institution of higher learning with which the Secretary has a con- tract or agreement as referred to in section