| Comment Number: | EM-001279 |
| Received: | 2/22/2005 3:33:35 PM |
| 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:
My name is E. Dennis Normand. I am a DOD employee at Robins Air Force Base. I am an electrical engineer by education and by trade. I am employed specifically as an integrated systems analyst. I've been a part of the DOD for some 25 years now. Needless to say, in that time period, I've seen a lot of programs come and go. The proposed NSPS transition for DOD Civil Service employees is incredible. I realize that there are some benefits to administration in so far as it relates to management/employee relations. This advantage that management wants so badly would wholesale strip any and all employees (excepting management) of their rights. This is not a step towards privatization, but rather seems to be a step towards 'Hitlerazation'. This is a total disregard for the constitution of this great country under which we are all guaranteed the rights of 'Due Process', 'The Right to a Hearing', i.e.., a trial by a jury of our peers. The release of such power and authority is no doubt going to result in abuse and corruption of that system. All one has to do is look around them for this reality to become clear. This proposal in it's current state is a ticket for anyone in a position of authority to abuse it with no fear of any personal accountability for having done so. As I see it, the various issues that this legislation are aimed to deal with, already exist. There are documented verifiable ways to deal with a problem employee. I've seen it done! It does require that a manager keep accurate and verifiable records, and that the times and dates be accurately documented, and that a review of these allegations be completed prior to taking any type of adverse action against an employee. In the context of this proposed NSPS system, there are no checks or balances in place to determine if the alleged activities by management are in fact correct, or if so, that the measure of discipline is appropriate. In other words, all it would take to unjustly destroy a person's future is a vindictive manager that doesn't have a sense of fairness or one who is determined to exact punishment or revenge upon an unlucky subordinate. What a travesty of fairness and justice. I am certian that there are many employees that should be dealt with, but as I said earlier, there are already ways to do this. Yes, the procedure that one would use is cumbersome and laborious, but this is intentional and necessary in order to assure fairness. If with the stroke of a pen, we could eliminate all of our perceived problems, would we have the wisdom and justice to administer fairly from an individual standpoint? Could it be that by going through a complex process, being seen by many eyes, has the net effect of causing us to be more careful about how we justify our actions, and legislate our morality based upon evidence we've gathered? I think so. I beleive that when the system was set up originally, and subsequent modifications thereto, it was envisioned that these requirements and actions be completed in a comprehensive manner so as to ensure all concerned parties have an opportunity to state thier case. The proposal of NSPS completely circumvents the intent of this wisdom. The harsh reality of this new NSPS system also extends into the world of job performance. Under our current system you can actually greive the results of your performance rating. Under the new system this is no longer a viable option. Please let me digress for a moment and give a few practical examples of the things that I'm talking about. These are the words of a legal professional, not my own. That lawyer's name is: Daniel Minahan MINAHAN AND SHAPIRO, PC Performance Rating: Subpart D: Performance Management This subpart would eliminate 5 USC Chapter 43, with its requirements for valid performance standards and a good faith opportunity to improve before an employee is demoted or fired. Supervisors would be permitted to set performance expectations in such vague terminology as "teamwork" and "cooperation." No more than one progress review per year would be required. And performance ratings would be used by supervisors to "adjust" employee pay (presumably up or down). To top it off, performance ratings would not be grievable but could be challenged through some other procedure yet to be designed. This represents a step backwards. In recent years, most federal agencies, including DOD came to realize that all the friction and misunderstandings caused by multiple-level performance ratings could be eliminated by a "pass/fail" system. This allows supervisors to separate the employees who should stay from those who should go, and use other tools such as performance awards and time off awards to recognize superior performance. Now its back to the personality pageant as employees grapple with supervisors over who has the best attitude or who is most appreciated in the workplace. And the stakes are even higher: basic pay and retention in a RIF are on the line. If you think this is going to contribute to a more productive workforce, well...wait and see. RIF's Subpart F: Reductions in Force It is difficult to understand what you are trying to accomplish with the proposed changes to the RIF regulations published by OPM at 5 CFR Part 351. The proposal is certainly not simpler or easier to administer. It does give considerably less of an advantage to veterans and disabled veterans in a RIF. It is also requires that performance ratings count for much more weight in retention standing than years of service. Adverse Actions Subpart G: Adverse Actions The proposal would provide for "mandatory removal offenses" for which no reduction in the penalty would be allowed. No list is given. Instead, the proposal says that the Secretary can issue and change the list at will. In contrast to the current law, which requires 30 days notice before an employee can be subjected to an adverse action, the new regulation would allow employees only 15 days notice, with only 10 days to submit a reply to the proposal letter. Appeal Process Subpart H: Appeals This subpart would establish a labyrinthine process for appealing adverse actions. Adverse actions would continue to be appealed to MSPB administrative judges, but the judge's decision could then be appealed to DOD, whose decision could then be appealed to MSPB headquarters, whose decision could then be appealed to the Federal Circuit. The employer therefore gets four guaranteed opportunities to have its decision upheld, as opposed to two guaranteed opportunities under current law. There is no indication as to who in DOD will review MSPB judges' decisions and the standards in this subpart would seem to allow that person or persons to disagree with the judge for almost any reason. And, throughout this whole ordeal the employee remains out of work, since "interim relief" cannot be granted until the appeal reaches MSPB headquarters. Prompt adjudication of appeals is a worthy goal. However, there is a difference between promptness and excessive speed. Under the new regulations, MSPB judges would have only 90 days to issue a decision. Naturally, the regulations put no limit on how long the employer can take to investigate and gather evidence before proposing adverse action. Yet somehow the employee is expected to be able to complete his own investigation, complete discovery, identify and prepare all witnesses and complete his legal research in less than 90 days. As a practical matter, the employee will be allotted no more than a month for these tasks. The reason is that it usually takes 30 days for the agency to submit its appeal file to MSPB and no MSPB judge is going to allow a hearing to be held any later than one month before he has to issue a decision. This subpart would also allow MSPB judges to issue "summary judgment," meaning a decision without a hearing. We've seen how this works at EEOC, with federal agencies bombarding mostly pro se complainants with legal documents they can't even understand much less reply to. Allowing a decision without a hearing is, in our opinion, unconstitutional. The Constitution assures that any public employee who can be removed only for good cause has a right to a hearing. There is another constitutional problem in this subpart. It states that an adverse action may not be reversed based on the way the charge is labeled as long as the employee has been informed of the facts in sufficient detail to respond. The stated goal is to overrule the "Nazelrod" case. In that case, an agency charged an employee with theft. The employee admitted he took $10 from an envelope but said he put it back later. The court, unsurprisingly, said the employee was not guilty of theft if he did not intend to keep the $10. The notion that a public employer must prove what it alleges in the proposal letter is so fundamental that it is required by due process. If an employee has been charged with theft, falsification or insubordination and is not guilty of those charges, the action against him cannot be sustained. If the employer does not want to be required to prove those charges, it is free to select any other charges it likes. The proposed regulations would also sharply narrow the grounds on which MSPB could mitigate a penalty, thus rejecting the "Douglas factors" which have been universally applied at MSPB and by arbitrators for a generation. The only basis for mitigating a penalty would be if it is "so disproportionate to the basis for the action as to be wholly without justification." The facts that the employee has 25 years of service, no prior discipline, an excellent performance record, the offense was inadvertent, the supervisor had personal animosity for him, everyone else who committed the same offense got less discipline-none of these things would justify mitigating the penalty. It is a mystery to us how it promotes the efficiency of the service for an agency to reserve the right to impose grossly unreasonable penalties on its employees. The proposed regulations also attempt to ensure that employees who are successful in appealing adverse actions do not recover attorney's fees. The effort federal agencies devote to trying to make sure that attorney's fees are not awarded never ceases to amaze us. Federal employees are often unable to find attorneys. Attorneys represent appellants in less than half of all MSPB appeals. Moreover, the MSPB sustains agency actions over 80 percent of the time. Certainly fee awards cannot be an economic burden on the agencies. The hostility to fee awards seems to result from a belief that they are intended as a punishment to the agency. The proposed regulations confirm this, by narrowing the basis for recovering attorney's fees to those situations where the agency's action was clearly without merit based on the facts known to management at the time the action was taken. The purpose of a fee award is not to punish the agency but to encourage qualified attorneys to represent federal employees on meritorious cases. If the personnel action is unjustified, the employee should not have to bear the cost of clearing his name and his record. What the employer knew or did not know at the time it took the action, or whether it was acting out of malice or bad faith should not be the key factors in whether the employee can be reimbursed for his attorney's fees. What if the employee is simply innocent? The employer accused him of misconduct and thought its evidence and its witnesses would prove the accusation, but they didn't. It is not in the interest of justice to make that employee foot the bill for the employer's mistake. The proposed regulations would also lead to necessary, but protracted fact-finding by MSPB judges on what agency management did or did not know at the time it took the action. Another objection to narrowing the basis for recovering attorney's fees is that it is not permitted by the law. One of the "non-waivable" sections of the law is 5 USC 5596, the Backpay Act. This requires an award of attorney's fees if the standards established under 5 USC 7701 are met. Those standards are not as narrow as the proposed regulation, and those standards include the standards developed by the MSPB over the years in the "Allen factors." Labor-Management Relations Labor-Management Relations-Subpart I This subpart is nothing but a wholesale assault on the concepts of collective bargaining and grievance/arbitration. The definition of conditions of employment is modified so as to exclude determinations regarding pay. This will deprive unions of the ability to bargain over any aspect of pay and will deprive employees of the ability to grieve such fundamental matters as the denial of overtime or premium pay. Also, as noted earlier, the proposed regulations would forbid employees from grieving their performance ratings. DOD says it will come up with some other process for this in the future. The definition of a grievance is modified so as to disallow any grievance alleging a violation of a law, unless that law was enacted for the purpose of regulating working conditions. The Privacy Act was not enacted primarily to regulate working conditions. The First Amendment was not enacted primarily to regulate working conditions. Yet, violations of those rights can have a profound affect on the working conditions of an employee. There is no reason why these violations should not be remediable in the grievance procedure. After narrowing the grievance procedure, the proposed regulations go on to take away the employee's right to go outside the grievance procedure into court. They say that if an employee has the option to grieve any particular issue, he may not file a lawsuit on that issue. Congress obviously disagrees with the idea that federal employees should not have the same access to court as any other American citizens. That's why it amended 5 USC 7121 in 1994 to strike down exactly the same rule DOD now wants to revive. What motivation other than sheer pettiness can account for this? The proposal would establish a new National Security Labor Relations Board (NSLRB) which would take over the functions now performed by FLRA. The only task left to FLRA would be holding representation elections. The NSLRB would decide all unfair labor practice issues and would rule on all appeals from arbitration decisions (except decisions involving adverse actions). The management rights portion of the proposed regulations is breathtaking in its repudiation of collective bargaining. Under the proposal, management would not only retain the exclusive rights it now enjoys to make decisions without bargaining but it would also not be required to negotiate over the "impact and implementation" of most of its decisions. Put more bluntly, the agency could simply implement a decision, with no advance notice to the union and no opportunity for negotiations of any kind. The proposed regulations contain a number of provisions about national-level bargaining. They state that there will no duty to bargain over national level issuances, such as DOD regulations or Air Force regulations. They state that DOD will decide, in its sole discretion, when to bargain over anything at a level higher than the level of exclusive recognition. Bargaining impasses will no longer be resolved by the Federal Service Impasses Panel. Instead, the NSLRB will resolve them. The proposed regulations take dead aim at two rights federal agencies have long resented- formal discussions and "Weingarten" meetings. A union would be entitled to attend a formal discussion only where a new personnel policy or working condition is being announced. The regulations would exclude formal meetings about EEO complaints from the coverage of formal discussions. As far as "Weingarten" meetings are concerned, the new regulations would overrule the Supreme Court's decision that independent agencies acting on behalf of management, like the IG, must allow union representation. Perhaps the most disturbing part of DOD's explanation of its regulations appears here. DOD says that it will hold union representatives to the same standards of behavior in these meetings as any other employees. Then DOD goes further and says that its new regulations reject the "flagrant misconduct" doctrine developed over the years by the FLRA (and the NLRA as well). The message is that union representatives will have no protection for any kind of vigorous expression of their viewpoints. Since you can be disciplined for calling your supervisor a jerk in the workplace, you can now be disciplined for calling the labor relations officer a jerk when he rejects a perfectly timely grievance as untimely. This pretty well speaks for itself, I think. I do not beleive that by implimenting an NSPS system we will be able to draw or interest the type of talent and professionalism that the Air Force claims to want. I think that it will have the effect of driving talented potential employees away. If this had been the norm 25+ years ago, I certianlly would not have considered employment by the DOD as a viable alternative. I know what you're thinking. Please allow me to set the record straight. I really do love my job, and aside from a few small issues with management, I find it rewarding and satisfying. I have a wonderful relationship with my supervisor, he's one of my best friends. I trust him. He is fair and honest. As far as performance is concerned, I have received appraisals that are excellent for many years in a row. I have no real fear of this NSPS package as it stands now. My concerns are exactly as stated above. I am lucky. I have fair and honorable managment for the most part. However, some of my co-workers are not so lucky, and if given a chance, thier managers would not hesitate to attack them to whatever extent the law would permit. Thier case is not unique. I beg you to please consider carefully the far reaching implications that this proposed reform may have. I don't see it as a positive force. There are some things about the program that are good. I think that performance based promotion is excelent. Also profit sharing (so to speak), awards in other words, are great. It is not all bad by any means. Keep the good points and rework the bad ones. There is always room for improvment both here and in our personal lives. Thank you for your kind consideration in this matter: