Comment Number: 05-02582-EREG-152-d7391-c32247
Received: 3/10/2005 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:

The proposed National Security Personnel System (NSPS) regulations issued by the Department of Defense (the Department) and the Office of Personnel Management (OPM) are deeply disturbing to me as a Department employee. I believe that these proposed regulations exceed the authority Congress granted in the NSPS statute in the following ways.

The Departments proposed NSPS regulations 9901.905(a) and 9901.914(d)(5) violate Congress explicit order in 5 U.S.C. 9902(b) to preserve collective bargaining by overriding any provision of a collectively bargained agreement through DoD or Component Issuances. In proposed NSPS regulation 9901.914(d)(5), the Department seeks to declare such issuances to be non-negotiable and superior to collectively bargained agreements. Essentially, this provision will provide the Department the authority to make any change it desires through these issuances, while barring any negotiation over these changes, in spite of Congress specific orders in the statute to the contrary.

The Departments proposed NSPS regulations violate the specific Congressional directive in 5 U.S.C. 9902(b) to preserve collective bargaining by expanding management rights so dramatically as to deny bargaining in almost any circumstance. In the proposed NSPS regulation 9901.910(a)(2), the Department declares that management will now have the power to take whatever other actions may be necessary to carry out the Departments mission, a clause that literally has no definition or limitation in the regulation. This proposed management right effectively ends collective bargaining in the Department, in direct violation of Congress specific order to the contrary, as management can literally apply it to any situation in the Department to deny bargaining.

In 5 U.S.C. 9902(m)(6), Congress required the Department to ensure that any new labor relations system provided for an independent third party review of the Departments decisions. However, the Departments proposed NSPS regulation 9901.907 (a)(1) intends to create a new labor relations review board, costing hundreds of millions of taxpayer dollars to invent a structure similar to the existing FLRA. Further, under proposed NSPS regulation 9901.907, the members of this board would be appointed solely by the Secretary of Defense, with no Congressional or outside oversight. This is the equivalent of the fox guarding the henhouse, violating Congress specific instructions to ensure an independent third party review.

Proposed NSPS regulation 9901.907(a)(1) violates Congress specific instructions in 5 U.S.C. 9902 (m) (6) to ensure independent third party reviews of the Departments labor relations decisions. In proposed NSPS regulation 9901.907(a)(1), the Secretary of Defense is provided the unilateral power to appoint as many members to this review board as desired. In other words, if the review board begins to issue decisions the Secretary doesnt like, the Secretary can pack the Board with as many new people as required until the board issues decisions to the Secretarys liking. This proposal is an emphatic rejection of Congress instructions in 5 U.S.C. 9902(m)(6).

The proposed NSPS regulation 9901.807(k)(8)(iii) denies employees their right to a fair hearing of their appeals for adverse actions taken against them by the Department. In this proposal, the Department reserves for itself the right to unilaterally reverse the decision of an MSPB Administrative Judge (AJ), merely because the Department does not agree that the decision was correct. This is the equivalent of the prosecution being able to tell a courtroom judge that the decision just rendered is not what the prosecution wanted, so the prosecution will overturn the judges decision!

DoD and OPM should scrap their harmful proposals for NSPS and work collaboratively with employee unions to develop a new system, as Congress directed them to do!