| Comment Number: | EM-008389 |
| Received: | 3/4/2005 1:46:36 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:
Comments on Draft NSPS Regulations Subpart G - Adverse Actions 9901.714(c)(2) - What is the difference between allowing an employee to take leave and placing the employee "in an appropriate leave status (AL, SL or LWOP)?" Forced leave appears not to be an option under NSPS. However, placing the employee in an AWOL status, as worded in this section, appears to be tied specifically to when the employee is absent and has not requested leave. This language does not track the language of 5 CFR 752.404(b)(3)(ii). The CFR language is better, if the intent of the draft language is the same. 9901.714(a) and 9901.715(a) - Recommend keeping the crime provision at a minimum of 7 days, versus the 5 days proposed. The 2 day savings realized in these unusual situations is minimal. The employee may get only 3 working days within which to reply, given the definition of "day." Off-duty criminal misconduct may be no more severe, in many instances, than on-duty misconduct which entitles the employee to a minimum of 15 days advance notice. Keeping the 7 day provision would have no discernible impact on the agency's national security mission, and provides the deciding official with slightly more scheduling flexibility. 9901.715(f)(3) - How would this criterion be applied? Why isn't the (f)(1) criterion sufficient to protect the agency's interest? Subsections (f)(1) and (2) are clearly tied to representatives who are Department employees. Is this language aimed at disallowing an employee's attorney or other non-DOD representative who don't have a clearance? Per 9901.714(b), the Department may not use evidence that cannot be supplied to the employee or the employee's representative. Section 9901.807 contains no parallel provision for disallowing an employee's choice of representative (the disqualification language at 9901.807(k)(2) does not address security compromises specifically). If a non-Department employee will serve as representative, he/she is far less likely to compromise security during the notice stage than during the appeal phase. It appears that the better way of reducing the prospect of compromising security is to limit discovery requests under 9901.807, rather than disallowing a representative in the reply phase because his/her activities might "compromise security." 9901.716(a)(1) - Recommend employing the same terminology in this subsection as is used in 714(b), i.e., "...may not consider any factual bases for the action other than those specified in the proposal notice." Subpart H - Appeals 9901.804 - There is no need to define Mandatory Removal Offense by citing the definition found in 9901.103. The definition in that section applies to the entire part. 9901.807(d)(2) - This subsection allows no reversal of the decision based on the manner in which the charge is labeled, but appears by its express language to allow mitigation (assuming that mitigation is otherwise available under the proposed regulations). Is that intended or was the omission of mitigation an oversight? 807(k)(6) employs the terms "basis for the action" and "sustained charge(s)" in discussing the applicability of mitigation. If the "basis for the action" ultimately is determined based on the factual underpinnings of the case, rather than the charge(s) employed, recommend employing more consistent language in the section as well. As currently worded, "basis for the action" may be either the "reason" (9901.716(a)) or the "factual allegations," two separate concepts. 9901.807(h)(1) - Attorney fees are warranted only in two limited circumstances. However, 807(d)(1) lists harmful error and "not in accordance with law" as bases for overturning a decision in its entirety. A "clearly without merit based upon the facts" error is not the same as a harmful procedural error. If the decision was illegal, or arrived at because the Department committed harmful procedural error, the employee should be allowed to recoup reasonable attorney fees. The proposed limitation bears no relationship to the Department's mission and penalizes employees for gross error by the Department, in the form of attorney fees. These situations should arise infrequently and have minimal financial consequences for the Department. They are much more onerous from the perspective of individual employees. 9901.807(k)(8)(ii)(B) - This section states that a precedent DOD decision that is reversed or modified by the full MSPB is not precedent. A reversed or modified "precedential" Department decision should be considered precedent. Retaining this provision could lead to needless litigation of similar issues in the future. The Department is free to challenge the MSPB decision via judicial review. 9901.807(k)(8)(iii)(A) - Under this provision, the Department may remand an AJ decision or modify or reverse it, if it believes that there has been a material error of fact or there is new and material evidence that was not available despite due diligence. Given this flexibility, it again appears unreasonable for the regs (in section 9901.807(h)(1)) to limit attorney fees to actions clearly without merit based upon facts known to management when the action was taken. An employee should have the same opportunity, in the context of attorney fees, to prevail on the basis of new and material evidence not available despite due diligence, whether management knew of the information or not, especially considering the shorter opportunity and notice period available to the employee under the proposed regulations. (The rationale that the current attorney fee standard "can deter the Department from taking action in appropriate cases and has a chilling effect...." is an exagerration. If management believes that an action is appropriate, based on facts known to it, it is unlikely that the prospect of attorney fees exercises any chilling effect whatsoever. Additionally, this approach is unnecessary if management can go to the MSPB to argue the same point. 9901.807(k)(8)(iii)(B) - This section allows the Department to modify or reverse an AJ decision if DOD determines that the decision (1) has a direct and substantial adverse impact on the national security mission, (2) is based on an erroneous interpretation of law, government-wide rule or regulation, or (3) is based on an erroneous interpretation of these regulations. Overall, the DOD intrusion into the RFR process is unwarranted and detracts from its goals of streamlining the appeals process and preserving due process protections. The first basis for modification or reversal is unfair. If management failed to prove its charge, factual allegations, reason, or basis for the action (whichever term applies), the national security mission should play no role in supporting the action after the fact. The DOD mission is no more important in proving that an employee was AWOL, insubordinate, incompetent, intoxicated, etc., than is the mission of the FAA or Interior Department. It is not a fact that supports discipline standing alone. At most, it is an aggravating factor that an agency official should consider to the extent that it bears a rational relationship to the charge, reason, etc., offered as the basis for the adverse action. Given the limited mitigation authority available to third parties in any event, this procedure is unnecessary to protect the Department's interests. The need for the provision appears so remote and speculative, and its negative effect on the credibility of the appeals process so apparent, that basis number 1 should be eliminated, at a minimum. A reasonably competent management advocate, coupled with a legitimate factual basis for action, should ensure that the national security mission is not overlooked, where it is a relevant factor. The second basis appears too far removed from DOD's area of expertise to warrant its retention. There is no apparent reason why DOD should be granted deference in its interpretation of regulations issued by OPM, DOL, etc. As worded, it appears that DOD determines the proper interpretation of all laws and external regulations. This assumes too much omniscience. It seems unlikely that a Federal circuit court would defer to DOD's expertise in this area. The third basis is appropriate, in that DOD's interpretation of these regulations should receive deference. However, the Department is able to raise this issue with the MSPB in the RFR and avoid the additional step in the process contemplated. The RFR process could be eliminated, allowing recourse simply to the PFR process. That would streamline the process with no degradation. 9901.807(l) - Recommend deleting any requirement that the full MSPB notify the Department if it or an AJ (esp. the AJ) is unable to meet any listed time requirement. That is unnecessary and pulls the MSPB away from more important tasks, particularly in the initial phase of NSPS. 9901.808(d) - If the Department loses in a mandatory removal offense proceeding, it can propose an adverse action (non-MRO) on the same or similar evidence. Under this subpart, an employee likely will not get attorney fees simply for prevailing in an MRO proceeding. The employee then may be required to incur additional attorney fees in a second proceeding based on the same or similar facts. Coupled with the fact that the proposed regulations make it extremely difficult for the employee to prevail so long as the facts in the proposed notice allow the employee to reply in a more or less informed fashion to related but unnamed charges, there is no need for this provision. If 99001.807(d)(2) (allowing no reversal based on how the charge is labeled) remains intact following the comment period, this section should be redundant. Subpart I - Labor-Management Relations 9901.903 - Definition of "confidential employee." This exclusion applies if the employee acts with respect "to an individual who formulates or effectuates management policies." The definition of a "management official" is one who "formulate[s], determine[s] or influence[s] the policies of the Department or who has the authority to recommend such action...." Does the definition of confidential employee contemplate this employee having a relationship with a bona fide management official? If so, recommend incorporating "management official" into the definition of confidential employee in lieu of the language currently employed. An individual who formulates or effectuates management policies appears to be at a different level than that of a management official who "formulates, determines or influences" Department policies, as well as that of a management official who has the authority to recommend changes to Department policies. Consistency would help to minimize arguments over potential exclusions. Definition of "management official" incorporates portions of the Chapter 71 definition of both "supervisor" and "management official." What is the impact of the addition of the phrase "if the exercise of the authority is not merely routine or clerical in nature but requires the consistent exercise of independent judgment?" Does not the fact that the position provides the incumbent with the authority to recommend formulation, determination or influencing of Department policies presuppose that the authority is not routine or clerical in nature? 9901.907(f)(1) - This limits the right to file a petition for an FLRA review of a Board decision to the 15 day period following issuance (not receipt) of the Board decision. This time frame should be 25 days following receipt, paralleling the time frame found in 5 CFR 2423.40(a). Fifteen days is simply too short (it could equate to 10 or fewer work days). Additionally, limiting the FLRA to 30 days to issue a decision (a default denial being the outcome) is too short. The MSPB has 30 days to render decisions that generally are individualized in terms of impact. There seems little to be gained overall by burdening the legal system with requests for judicial review because of an exceptionally narrow time frame, or by forcing the FLRA to rush to judgment to avoid a default decision. The term "harmful error" is used in 907(f)(1)(ii), but that term is not defined in this subpart. Presumably, the test found for this term in Subpart H is what is intended. 9901.910(c) requires the Department to consult with the exclusive representative over the procedures it will use in implementing certain of its reserved rights. However, 901(d) allows management to provide notice to the union contemporaneously with its exercise of those rights. Since the exercise of those rights will involve the procedural aspects, consultation appears to be virtually meaningless. While 9901.901(d) allows further advance notice at management's discretion, there likely will be many circumstances in which consultation would be a hollow exercise. Additionally, the contemporaneous notification/implementation process would make the 910(e) requirement to bargain over procedures for (a)(3) rights or appropriate arrangements for (a)(1), (2) and (3) rights appear to be at least somewhat of a nullity, especially when combined with the general prohibition against retroactive application of any agreement reached. 9901.912(b) - Under subpart I, a unit is inappropriate if it includes newly defined management officials, supervisors, confidential employees and other, more limited exclusions. 9901.904(b) states further that the provisions of subpart I do not apply to employees excluded under the provisions of 912. Does this language contemplate that management is free to unilaterally exclude such newly-defined employees from existing bargaining units when subpart I takes effect, without a need to file a petition with the FLRA? Section 9901.912 reserves to the FLRA the authority to determine the appropriateness of units and the inclusion of certain classes of employees within the unit. 9901.912(c) - Given the language of 912(b)(5), this section appears inapplicable in the DOD context. The "administering any provision...of this subpart relating to labor-management relations" is already captured in 912(b). Further, while 916(b)(5) excludes from bargaining unit status any employee engaged in administering subpart I. 916(c) appears to allow such status so long as the exclusive representative does not represent any other DOD employees. This appears to be a contradiction. 9901.916(a)(3) - This section states that it is a ULP to control a labor organization. However, under 908(a)(1) , the Department will adjudicate unfair labor practices arising in the context of 916(b)(1) through (b)(8) and, presumably, order remedial relief. That seemingly conflicts with the admonition not to control labor organizations. The conflict can be cured by allowing the FLRA to adjudicate ULP's filed against labor organizations, whether filed by employees or management. This situation arises infrequently and allowing the FLRA to rule on it would ease likely union concerns about receiving a fair trial. Nowhere do the regulations specifically define the remedial authority of the Board. 9901.908(a)(1) states that the Board has the authority to resolve complaints of ULPs. Section 9901.908(a)(7) generally precludes status quo ante remedies. Absent is any other discussion as to the extent of this authority (compare 5 USC 7118(a)(2)). Is the Board's discretion unfettered save for the prohibition on status quo ante remedies? 9901.917(b) - When bargaining over an initial or successor collective bargaining agreement, recommend making the use of FMCS mandatory, not optional. Dealing with a mediator likely will prove beneficial to the parties' relationship and will help to reduce the workload of the Board by narrowing or eliminating the matters in dispute. 9901.917(d)(2) - Recommend deleting the lead-in phrase "[e]xcept as otherwise provided in Sec. 9901.910(c)." That subsection appears to have no real meaning in the context of 917(d)(2), which limits the bargaining obligation to matters that are more than de minimis. 910(c) does not affect the meaning of 917(d)(2). 9901.918 - While the explanation of this section indicates that management may require bargaining on a multi-unit basis, this section does not specifically state that this is the case (unlike 9901.919, which states specifically that management may require bargaining above the level of recognition). This should be stated specifically, rather than being implied. 9901.922(f)(1) - Recommend that this section specify that the grievance be filed in writing, paralleling the construction in 922(e)(2). While the requirement is stated later, at section 922(g)(4)(ii), it makes sense to emphasize the requirement initially, as is done with respect to a prohibited personnel action election. 9901.923(a) and (b) - See comments above relative to 9901.807(k)(8). They apply to this provision as well. If 807(k)(8) is amended, this provision would be more palatable. Additionally, as written, it appears that the regulations contemplate the possibility that arbitration awards might be considered precedent. If that is the case, recommend that the awards remain of persuasive value only. Given the vagaries of arbitration, such awards should not establish precedent. 9901.923(b) - An exception based on "the Arbitrator's failure to properly consider the Department's national security mission" should be based on arguments or evidence raised before the arbitrator and not raised after the fact. This does not equate to a reserved management right. 9901.923(c) - This incorporates Back Pay language directly from 5 USC 7122(b), setting up an inconsistency between the back pay provisions of the appeals process (807(h)(i)) and the arbitration process. It isn't clear why different standards would apply, at least in the context of adverse action grievances. 9901.928 is confusing. Since the entire subpart I does not apply to grievances or other administrative proceedings pending on the date of coverage, it is difficult to reconcile the subsequent prohibition on remedies ordered in those proceedings that are inconsistent with all of part 9901. The first sentence should be revised. If the first sentence is accurate, it appears to nullify the second sentence.