What the NSPS Doesn’t Want You to Know

Quotes from the NSPS Web Site are taken from the document "Myths and Facts", which can be found at http://www.cpms.osd.mil/nsps/MythsandFacts030805Final.pdf

 The Truth:

• The Department testified before Congress during the Legislative debates that the NSPS was vital to protect our National Security. The Department’s mission IS national security, but the NSPS, as proposed, does nothing to bolster the accomplishment of that mission.
• The Department publicly unveiled plans for NSPS in the wake of the September 11 attacks and the war in Iraq, selling the NSPS as vital to the issue of National Security. In reality, the attacks on employee rights and protections contained in NSPS were being promoted by conservative think tanks long before September 11 as part of a broader goal of gutting employee unions. The Department has cynically used the public’s concern about terrorism and national security as a smoke screen for its actions.
• The NSPS proposes to empower civilian employee managers to act unilaterally, to reduce employee representation rights, to limit employee appeals of adverse actions, to effectively eliminate collective bargaining and to make salary dependent on pleasing managers – not on meeting mission-based goals.
• The NSPS proposals will allow managers to hire "cronies" rather than the most qualified. In other words, the priority is a workforce of "like minds," rather than the best and brightest minds.
• Managers are provided with unlimited "flexibilities" to "manage" their employees through "performance evaluation." These employees may now be evaluated by SUBJECTIVE factors (in other words, standards that are not measurable and left to a manager’s discretion), such as "professionalism," behavior, attitude, and other factors.
• These subjective factors to evaluate performance will vary from manager to manager, subjecting employees to arbitrary and capricious evaluations. What one manager will consider high performance in one department may get an employee in another department an "unacceptable" rating.

 Does NSPS Allow the Department of Defense to Assign Civilian Employees Anywhere in the World, Including War Zones, With Little or No Advance Notice?

 The Truth:

• This is one of many "red herrings" used by the Department to justify the NSPS:
• The Department has long had the authority to send its civilian employees anywhere, when the mission requires it.
• The Department and its unions have long had "fair assignment" negotiated procedures in contracts to allow for rapid utilization of volunteers, before asking non-volunteers.
• In fact, Department employees regularly volunteer for missions, such as when the U.S.S. Stark was attacked and volunteers rushed in to save it from sinking.
• Under the NSPS proposals, all of the "fair assignment" negotiated agreements will be discarded.
• This means that instead of asking for the willing volunteer, who is capable of dropping everything to go immediately, the Department will select anyone it wants to go, regardless of whether that person is capable of deploying immediately.

 The Truth:

• The information on the NSPS Web site is only a "half truth":
• The manager, through the performance appraisal process, has control of whether employees will receive an increase in basic pay. In other words, the manager can reward favorites, while denying raises to those the manager doesn’t like.
• Locality pay is replaced with "local market supplements" under NSPS, and is considered part of basic pay.
• If a manager rates an employee as "unacceptable," the employee is no longer eligible for the "local market supplement."
• If you are within 3 years of retirement or separation, this can have a major impact, as the "high 3" retirement annuity computations are based on the last three years of basic pay.
• Any benefits that employees currently received from their negotiated Collective Bargaining Agreements can be taken away through issuance of regulations by the Department.

• The Department is telling a BIG "half truth" here:
• Under the NSPS’s new proposed RIF procedures, the Department can define an area subject to RIF any way it wants. That means that it can make the area as small as the department in one building or office, or even just those who are veterans in an office or department.
• The NSPS proposals also eliminate "bump and retreat" rules. This means that even if you have Veteran’s Preference, it does nothing for you if you cannot "retreat" to a position elsewhere that you may be qualified for.
• The NSPS proposals also seek to allow the Department to use the location of an applicant’s residence as one of the key hiring factors for managers.
• The NSPS proposals allow managers to hire from the "commuting area" first, and expand the hiring area as needed.

• Once more, the Department isn’t being completely honest with its employees:
• The Department can use NSPS to define the RIF area however it wants. It can even limit the RIF to veterans in a single office if it so desires under the NSPS. Thus, your status is lost when you are grouped in with other like employees.
• The REALITY of NSPS: SENIORITY DOES NOT MATTER. The Department uses long sentences above to spin the truth, but if you read it again carefully, the Department is VERY clear: NSPS will "give greater weight to performance in RIF retention by placing performance ahead of length of service."
• Put simply, how your manager views your performance FOR THIS RATING PERIOD decides whether you have a job or not, regardless of how long or well you have contributed to the Department’s mission.
• If the manager is aware that a RIF is coming, the RIF can be "rigged" through the performance evaluation process, ensuring that the favorites survive and those the manager doesn’t like get RIF’d.
• In other words, if you are in a group affected by a RIF, and you are a 25-year employee, who has received "acceptable" or "passing" ratings this year, but a 4^th year employee has been given a "superior" or "outstanding" rating, that rating will put that 4^th year employee past the 25^th year employee, even if that employee never received anything more than a "pass" rating before and the older employee received "outstanding" every year before.
• Under the NSPS proposals, appeals of performance evaluations will remain in the Department. There will be NO independent third party review. Furthermore, the Department has not even said WHAT the system will look like – only that details will be presented later.

• Once more, the Department can’t level with the employees:
• The Department is already preparing to RIF over 11,000 Navy civilian employees.
• The Department avoids mentioning that "bump and retreat" rights have been eliminated.
• The Department has been provided the statutory authority under NSPS to use up to 25,000 buyouts a year to "reorganize" the Department.
• Under the NSPS proposals, the Department has been given the broad authority to devise its own hiring procedures.
• In other words, just because the Department reclassifies a position and changes the position from uniformed to non-uniformed, does not mean that a federal employee will get that job. The position can easily be filled through a non-competitive contract.

• The Department claims in the NSPS proposed regulations that the details of the NSPS pay system have not been decided.
• However, briefings to Congress demonstrate that the Department intends to use the President’s OMB budget proposals for GS employee raises to determine how much Department employees would have received as a pay raise.
• In other words, if the President proposes a 2% pay increase for federal employees, but Congress passes a 3% increase, the Department intends to use the 2% to determine how much the Department’s employees would have received.
• As for Within-Grade Increases (WIGIs), the Department admits in the proposed regulations that employees will only get credit for the time between WIGIs, but that any payments/or adjustments will be at the Secretary’s discretion.
• In other words, assuming that the Secretary decides to provide a WIGI buyout, if it has been 6 months since your last WIGI, you get one final WIGI worth 6 months time, but no more, when converted to NSPS. Meanwhile, someone else who is due their WIGI when converted will get the entire WIGI.
• However, it is just as possible that the Secretary will decide that the Department can’t afford a WIGI buyout, and no one will get anything.

 The Truth:

• The proposed NSPS regulations clearly state that the Department can set this "local market supplement" at different rates for different occupations subject only to the Secretary’s discretion.
• The proposed NSPS regulations allow the Department to adjust this locality pay based on factors not considered in GS locality pay, including:
• "Availability of funds"
• "Mission requirements"
• "Any other relevant factors"
• In other words, different employees in the same office can receive different locality pay, despite all of them living in the same area, being in the same pay band, and regardless of performance.
• The NSPS proposals would allow this "supplement" to be reduced, or even eliminated, merely because the Department needs this money elsewhere in its budget.

• Once more, the Department intends to use the President’s OMB budget proposals for GS employee raises to determine how much Department employees would have received as a pay raise.
• Therefore, if the President proposes a 2% pay increase for employees, but Congress passes a 3% increase, the Department intends to use the 2% to determine how much the Department’s employees would have received.
• Applying the proposed NSPS system, using the OMB guidance for the past 3 years instead of the current pay process, your salary level would have been about 6% less!
• The proposed "local market supplements" under NSPS will ONLY be available if the Department has the funds in its budget to pay it. Under the present pay system, locality pay is guaranteed in the budget.
• In the Federal Aviation Administration (FAA), which has a pay system similar to the NSPS proposal, there are employees who have received "outstanding" ratings, who have not had a pay increase in 3 years.

 The Truth:

• The NSPS statute only requires this protection until 2008. After that date, the Department is free to decide how to allocate these funds.
• The proposed "local market supplements" under NSPS will ONLY be available if the Department has the funds in its budget to pay it. Under the present pay system, locality pay is guaranteed in the budget.
• Once more, the Department intends to use the President’s OMB budget proposals for GS employee raises to determine how much Department employees would have received as a pay raise.
• Therefore, if the President proposes a 2% pay increase for employees, but Congress passes a 3% increase, the Department intends to use the 2% to determine how much the Department’s employees would have received.
• Applying the proposed NSPS system, using the OMB guidance for the past 3 years instead of the current pay process, your salary level would have been about 6% less!

• The proposed NSPS Regulations and Supplemental Information make clear that the Department will provide some general training, but expects the local areas to fund the training out of their own budgets. Given the Department-wide need for funds, it is highly unlikely that these funds will be available.
• Given the VERY subjective elements added to the performance appraisal process, it will be impossible for anyone outside of the supervisor and the employee to provide a legitimate review of these elements.
• Under the NSPS proposals, appeals of performance evaluations will remain in the Department. There will be NO independent third party review, as the right to grieve these evaluations has been taken away. Furthermore, the Department has not even said WHAT the appeal system will look like – only that details will be presented later.

• The Coalition of unions representing the Department’s employees have been ignored throughout the process:
• Union requests to participate in the "working groups" and other groups that developed the NSPS proposals have been consistently rejected by the Department since the union’s first request in February 2004.
• The unions have met with the NSPS representatives several times. However, since management would not discuss problems or solutions, the meetings were even less than useful.
• The publicized "town hall meetings" and "focus groups" were little more than PR and rarely offered any substance to employees. Employee questions were often met with canned responses.
• Requests by the unions to see and comment on the NSPS proposed regulations and options before they were finalized were rejected and ignored by management.
• The Department even ignored Congressional requests to see these NSPS proposals before their release.
• The unions were provided a set of proposed "options" from the Department in February 2004. The basic outline of the proposed NSPS regulations are almost identical to the February 2004 "options," with only the most egregious "options" that drew the ire of Congress removed.
• The NSPS regulations were drafted completely in secret by the Department, with no union involvement. The first time that the unions saw the proposed regulations was when they were issued in the Federal Register in February 2005.
• Despite assurances from management that employees would be free to comment on the NSPS, employees at many installations were prevented from posting comments on the NSPS website, prevented from discussing them on post, and prohibited from writing editorials in local media or making any public comment on the NSPS.
• Finally, several of the unions in the Coalition filed a lawsuit in Federal Court against the Department and OPM for excluding the unions from the process used to develop the NSPS, since the NSPS representatives ignored explicit statutory requirements that required union involvement.

• The proposed NSPS regulations take away the rights of many of the Department’s civilian employees to join a union. The Department states, with no proof, that such employees cause a problematic conflict of interest by being in a union.
• The Department has redefined "collective bargaining" to mean "consultation," which means that the Department does not even have to try to reach an agreement. Management only has to provide an opportunity for the union to offer an opinion and listen, without even offering a proposal in return.
• The proposed NSPS regulations expand management rights to prohibit bargaining when management "takes whatever actions may be necessary to carry out the Department’s mission."
• Even if management and the union reach agreement, and draft an agreement, management can overturn the agreement by unilaterally issuing a "policy" or "issuance." In other words, even if you have an agreement, if the agency decides it does not want to be bound by it anymore, it can unilaterally negate it by simply saying so.

 The Truth:

• The proposed NSPS regulations provide for an independent MSPB Administrative Judge (AJ) to hear appeals. However, the Department then reserves the right to unilaterally overturn the INDEPENDENT AJ decision, simply because the Department disagrees.
• This sham is the equivalent of the prosecution arguing a case before a judge, and when the prosecution loses the case, the prosecutor tells the judge that the prosecution thinks the decision was wrong, so the prosecution will overturn the judge’s decision.
• Congress did NOT provide this power to the Department in the NSPS statute.
• The Department decided on its own to set up a rigged appeals system that would discourage employees from fighting back, no matter how meritorious their claim. Such a system has nothing to do with National Security.
• Under the NSPS proposals, appeals of performance evaluations will remain in the Department. There will be NO independent third party review, as the right to grieve these evaluations has been taken away. Furthermore, the Department has not even said WHAT the appeal system will look like – only that details will be presented later.
• Employees will no longer be allowed to grieve pay decisions under the negotiated agreements between their union and management. In fact, the NSPS proposals do not even state HOW employees will be allowed to challenge their manager’s decision. The proposals only state that it will be done internally and will be decided later.

• There are no procedures in the regulations to provide for review of these performance ratings by any body or person independent from and outside of the Department.
• In other words, your performance rating appeal will be subject to review only within the Department.
• The Department has not even explained the proposed system in its regulations. It merely states that it will be revealed later.

• Caveats the Department fails to mention:
• While an independent MSPB Administrative Judge (AJ) will issue a decision in your appeal, the Department can unilaterally overturn that decision, just because it disagrees with the decision’s rationale.
• The NSPS proposes to shorten the time limits for appeals, while placing more limits on the rights of the employee and union to obtain information for the appeal.
• The Department can deny the employee their choice of a representative by alleging the selected individual is too busy or would cost the Department too much to bring in, regardless of whether the selected representative agrees with that determination or not.
• The NSPS proposes to prohibit an arbitrator or the MSPB from modifying the Department’s proposed penalty unless it is "wholly without justification." In other words, the MSPB cannot mitigate the penalty unless it finds that the penalty issued was completely unjustified for the offense committed.
• Even if an arbitrator or the MSPB finds some grounds to modify a penalty, NSPS proposals REQUIRE them to apply "the maximum justifiable penalty." In other words, these independent jurists cannot use their own judgment of an appropriate penalty or exonerate the employee.

• While an independent MSPB Administrative Judge (AJ) will issue a decision in your appeal, the Department can unilaterally overturn that decision, just because it disagrees with the decision’s rationale.
• The NSPS proposes to prohibit an arbitrator or the MSPB from modifying the Department’s proposed penalty unless it is "wholly without justification." In other words, the MSPB cannot mitigate the penalty unless it finds that the penalty issued was completely unjustified for the offense committed.
• Even if an arbitrator or the MSPB finds some grounds to modify a penalty, NSPS proposals REQUIRE them to apply "the maximum justifiable penalty." In other words, these independent jurists cannot use their own judgment of an appropriate penalty or exonerate the employee.
• The NSPS proposes to allow the Department to pressure the MSPB through continuous intervention rights. In other words, even if the MSPB overturns a Department decision, the Department can continue to ask the MSPB to reconsider its decision, pressuring the MSPB to issue a "favorable" decision: a right that is NOT granted to the Department’s employees.