Comment Number: 05-02582-EREG-135-d7391-c32221
Received: 3/8/2005 8:00:00 AM
Subject: Notice of Proposed Rulemaking, Request for Comment
Title: National Security Personnel System
CFR Citation: 5 CFR Chapter XCIX and Part 9901
No Attachments

Comments:

Employee Appeals

Public Law 108-13 also reflects Congresss determination that DoD employees be afforded due process and be treated fairly in appeals they bring with respect to their employment. Notwithstanding these clear congressional directions, we fear your concepts will:
Eliminate the right of a union to submit serious adverse actions imposed against bargaining unit employees to an arbitrator.
Reduce an employers burden of proof in adverse actions cases to a standard that would require DoDs decisions to be upheld even if they are more likely than not to have been improper.
Establish a list of mandatory removal offenses that can be appealed only to a panel appointed by the Secretary.
Impose a higher standard of review for an employee to prevail in a grievance challenging a performance rating, which is used as a determinant of an employees pay under the new system.
When it mandated the employees be treated fairly and afforded the protections of due process, and authorized only limited changes to current appellate processes, Congress could not have envisioned the drastic reductions in employee rights that your pre-decisional concepts conceive.

These proposals appear to be based more on some political philosophy than on a demonstrated need for changes that would enhance the agencys ability to perform its mission. No evidence shows that current employee due process protections or the decisions of an arbitrator or the MSPB jeopardize national security and defense. Indeed, when challenged to cite specific incidents where the current system failed, you cherry picked only six cases, from 1994 to 2004, wherein you allege that honoring an employees due process and/or appeals rights delayed supposedly just disciplinary action. While we believe in an expeditious process for employee appeals, we cannot support biasing the process in favor of management or otherwise reducing the likelihood of fair and accurate decisions. You have provided no research that shows that the drastic changes proposed to Chapters 75 and 77 of Title 5 would further the agency mission. Yet, in the name of a contemporary and flexible system, sweeping changes from the status quo are potential concepts proffered by the Agencies.

Indeed, one of your pre-decisional concepts proposes to establish a list of mandatory removal offenses, runs contrary to the direction taken by Congress and the Administration in H.R. 1528, a bill that would repeal statutory mandatory termination offenses currently applicable to Internal Revenue Service employees. H.R. 1528, drafted by the Administration, has passed the House with strong bipartisan support.1 If implemented, your concept would have the same negative effect as the IRS legislation targeted for repeal in H.R. 1528. This concept must be dropped.

Ideally, a new human resource management system would promote esprit-de-corps so as to enhance the effectiveness of the workforce. These proposals fall far short of that ideal. Instead, they will result in a demoralized workforce composed of employees who feel as if they have been relegated to second-class citizenship. This system will encourage experienced employees to seek employment elsewhere and will deter qualified candidates from considering a career at DoD. It will put DoD at a competitive disadvantage.