17 May 2005
The coalition is strong and the UDWC will remain at the table as long as it takes. The frustration felt yesterday by coalition members helped our cause by expressing a message that; enough is enough! Coalition members have walked because they speak for their members. AFGE remains at the table to see that our members are heard. The opportunity to confer on issues that we believe in and stand for as a Federation is now. The American people need to hear the truth and it's not status quo for Federal Workers. Our members within AFGE need to be heard, the 58,000 comments and suggestions you gave NSPS need to be adopted into the Federal Register.
23 Responses and Recommendation letters from DOD and OPM are under review!
The frame work of expressing how DoD and OPM have over reached their authority was pointed out all along throughout this process. Today this was reiterated with the hopes of pointing out to the people across the table that they need to realize our concerns and to fix it now!
Union concepts and interpretations are reviewed.
Subpart G Adverse Actions
Quote of the day: "Tell me how this is a fair process for an employee appeal" dead silence
Subpart H Appeals
The Unions recognize and appreciate the DOD's desire for an appeals process which is simpler, more efficient and less cumbersome than the present system. However, we believe that it is critical that the system be fair, evenhanded and independent, that it afford every employee due process and fair treatment, and that it provide for independent, impartial decision-makers. The law requires no less.
For these reasons, we accept DOD's proposal of a single process and standard for taking adverse actions, whether based on performance or on misconduct, the use of a summary judgment procedure where appropriate, that is where the facts of a case are not in dispute, and expediting the process to require that decisions be issued within 90 days at both the AJ level and by the full Board. We also reiterate our earlier position that adverse actions for bargaining unit employees should continue to be subject to grievance arbitration, and that arbitrators stand in the shoes of the MSPB when deciding such cases, with traditional judicial review. See Additional Comments on Subparts G, H & I presented to you 5/16/05.
However, we cannot accept the majority of DOD's proposed regulations, which are so one-sided as to deny effective due process to its own employees, and have no apparent national security nexus. For example, it demands the unprecedented authority to "remand, modify, affirm, or reverse" an initial decision by an AJ, effectively giving itself two chances to appeal a decision, while the employee gets only one. This is neither fair nor efficient, nor does it comport with basic principles of due process. Instead, both sides should be given the same appeal rights. Similarly, DOD's proposal to outlaw mitigation except where the penalty is "wholly without justification" is outrageous and almost impossible to meet.
By the same token, DOD's demands of "extreme deference" to the agency and the "maximum possible penalty" in every case are not designed to foster fair and independent review, as required by the statute, but seem intended to tilt the playing field against innocent employees and in favor of the agency. Instead, both mitigating and aggravating factors, such as the length of employment and prior record of the employee, should be taken into consideration in determining appropriate penalties, as they have since 1981. See Douglas v. VA, 5 MSPR 280, 305-06 (1981). Due process demands no less.
We also see no reason for arbitrary and one-sided restrictions that artificially limit employees' right to recover attorneys fees, to take depositions, or to seek extensions of time for good cause. Nor can we comprehend any national security basis to permit the DOD to first propose a mandatory removal, which then to propose a second termination BASED ON THE IDENTICAL (FALSE) EVIDENCE after the first removal action is found to be unjustified. If the evidence was proven to be false the first time, why rely on it again to punish the innocent employee twice? Finally, most of these proposals are contrary to law, as they purport to amend statutes such as the Back Pay Act and the MSPB jurisdictional statute without any statutory authority in the NSPS statute. Most of the proposed changes to these basic rules of procedure are unfair, unnecessary and unlawful, and a perversion of due process. We urge you to modify them as set forth herein.