| Comment Number: | EM-017565 |
| Received: | 3/14/2005 2:19:16 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:
March 14, 2005 DoD NSPS Comments , DoD NSPS Comments: I write to express my concerns about changes to work rules in the Department of Defense (DoD). The proposed regulations, known as the National Security Personnel System (NSPS), were printed in the Federal Register on February 14, 2005. This message will be sent to both DoD and my representatives in Congress. I have been an EPA employee for 17 years. I am also a President of my Local Union, AFGE Local 3911 representing 800 EPA employees in the New York city region and Executive Vice President of AFGE Council 238, representing over 8,000 EPA employees nationwide. I am aghast at the passing of legislation to alter DoD personnel regulations through the NSPS. It is a complete reversal of the laws and regulations created over the past 100 years to protect civil service employees. But even more horrendous is that President Bush and his staff have announced that they intend to have all Federal Agencies adopt similar rules come 2006. What is happening here? The current DoD proposals treat the employees who help defend our country as the enemy. Most DoD employees work hard and are committed to serving their nation. I believe that mistreating the employees will hurt the agency?s mission. I am very upset by NSPS. This system will change the way workers are paid, evaluated, promoted, fired, scheduled, and treated. These rules would create a system in which federal managers are influenced by favoritism rather than serving the civil concerns of the American people. I can attest - Federal supervisors are incapable of treating their employees with fairness and equity unless a stern set of rules guides their actions. The current system is not, contrary to myth - broken. I can attest from personal experience that the reason it is perceived as not working is because Federal managers are not held accountable for their failure to adhere to it. An employee with poor performance who refuses to improve can be removed from the federal government in a matter of months. But it requires the supervisor actually monitor the employee?s performance and work towards improving it. Naturally managers would prefer a DoD system which would relieve them of any responsibility to do anything. Under NSPS, a supervisor may merely not like you and that is grounds for demotion, removal or worse. Why give the supervisors so much leeway? They need to be monitored and forced to work within the system they have, not let of the hook to run wild. Or is this government now so firmly controlled by corporations that we need to be run like one? Specific comments: Pay Raises After 2008: After 2008, NSPS provides DoD with full authority to determine pay raises for their employees - IF ANY. This kind of power should never be in the hands of managers but should remain the domain of Congress. Pay Banding/Adjusting rate ranges: Pay banding simply does not work in the Federal government. Managers already have the ability to the control pay raise both within grade and career ladder promotions by gauging an employee?s performance. But the raises are set by Congress and thus are fair and equitable across the board. Shifting into pay banding and allowing managers to set salaries based upon their own whims creates unfairness and will only lead to huge drops in morale, increased number of complaints and a drop in Agency efficiency. Locality Pay: Removing locality pay adjustments from an unbiased and fair body like Congress and allowing DoD managers to determine salaries is again ludicrous and unfair. Managers have enough on their minds then have to set up the fair and necessary studies to determine where locality pay is needed and by what amounts. They are incapable of seeing beyond their own little fiefdoms to make adequate decision. Imagine that all DoD offices will lobby for locality pay in their own neck of the woods. Even Oshkosh, Nowhere will demand a locality pay adjustment even if the cost of living is the lowest in the control. This kind of decision must remain in the hands of an unbiased group. Pay For Performance: Federal mangers can already establish set pay increases on an employees? performance. They do not need more flexibility nor free reign to expand this. Any delegation of more authority to Federal managers to set pay raises or increase/decrease them based on their own preferences is a path to disaster. Managers cannot be trusted to be completely fair in their evaluation processes. Bias and prejudices always seep into their decision making process. Right now, two employees who are performing satisfactorily are each guaranteed the same pay increase when their time is due regardless of a supervisor?s personal bias. Under the NSPS a supervisor could arbitrarily decide to provide one employee a higher increase than the other based on some biased or favoritism This is fair? Overtime and Premium Pay: This is a meter fo law, not a matter of DoD managers preferences. Freed form having to follow any laws that set premium pay options nationwide, DoD will establish rules that will allow them to maximize the work hours assign to an employee WHILE ensuring that they won?t have to pay a dime in compensation. These kind of rule making belongs in the hands of legislators NOT Federal managers. Subpart D - Performance Management - ?? 9901.401 - 9901.409 Employees cannot function in a work environment where their performance expectations can change at any pint in a year without notice. This is ridiculous. The effects on morale and employee efficiency will be degrading. Definitions of what goes into a performance plan must be clear and well defined and linked to work functions not behavioral elements. Linking performance to things like ?behavior? or ?professionalism? are uncalled for. Performance should be based upon one?s work nothing else. Conduct and discipline policies can address employee behavior. Of course employees must have a fair and unbiased appeal process to challenge performance ratings. Denying them this is the equivalent to making them wage slaves who serve the Agency with no voice. These workers are human beings not machines. They will disagree with a managers rating and usually with good reason. They must be allowed the ability to challenge a rating and be granted a decision by a third party not tied to the Agency (i.e. arbitrator) Subpart E - Staffing and Employment - ?? 9901.501 - 9901.516 New positions in DoD must not be based upon patronage opportunities. DoD managers must fill positions based upon existing methods provided by law and not be given leeway new appointment authorities which they can then abuse to hire their friends and relatives without checking for their qualifications. Criteria must be established for probationary periods. A set definition must be included in the regulations. Usually it is one year in the Federal government. If a particular position requires more than that, establish them now and not leave it to the discretion of DoD management who may decided to change the time frames willy nilly when they need an easy excuse to let an employee go. ?Sorry, the probationary period for your job was just extended to today and we?ve decided to let you go...? Subpart F- Workforce Shaping - ?? 9901.601 - 9901.611 RIFs need to be based upon existing rules and law. There is no justification for broadening the situations an employee can be subject to a RIF. How does this bolster national security. Making it easier to remove employees? Subpart G -Adverse Actions - ?? 9901.701 - 9901.721 Deciding officials, not just the Secretary should be able to determine if the penalty for any offense including an Mandatory Removal Offenses(MRO) can be reduced. MROs should be laid out in the regulations - NOT subject to DoD creation somewhere down the road. OR MOD can be negotiated with an exclusive labor representative. Under ?Time frames? - actions should be stayed if the employee files an appeal through a negotiated grievance or statutory process to allow them to get their day in court before they may be adversely affected by loss of pay or employment.. As for employee?s choice of representative, this is one of the most inevitable rights one has. Everyone is entitled to representation in the real world?s courts of law. But under the new NSPS DoD can disallow a representative? This is horrible. So DoD can now simply say a Union representative can be disallowed because it is a ?conflict of interest? After all, the Union rep. is a DoD employee. This must never be allowed. I can see management will always determine a rep is a conflict of interest. If this goes forward, Union officials should be exempt from such exemption. Subpart H - Appeals - ?? 9901.801 - 9901.810 Standards of proof for performance based actions should remain as a showing of substantial evidence not a preponderance as they do not have the same level of impact on the Agency and can be corrected if managers would do their jobs!!!!. Any action that is currently appealable through MSPB, such as RIF's or actions taken under DOD placement programs must still be allowed . What justification is there for removing these protections? The only obvious answer is that managers want the power to remove employees without any challenge. This is America, not a dictatorship. Everyone is entitled to their day in court. Why were these appeals created originally in the first place? To protect employees from managers who would remove them with no just cause! In the same fashion, deadlines for MSPB appeals should remain 30 days. Allow for extensions for additional time to. Do not limit either parties right to discovery. No limits to interrogatories, depositions, and other means for gathering facts. Stay of actions should remain. Why? Because Congress saw fit to establish these laws for all employees, DoD is not so special that they should be exempt. They have simply not made the case for this. Standards for MSPB and arbitrators to mitigate (substitute a lesser penalty) for actions should also remain the same as they stand today. ?Wholly without justification" is an almost impossible standard for anyone to meet. In short, MSPB rules as they exist today should continue to apply to DoD. Subpart I - Labor-Management Relations - ?? 9901.901 - 9901.928 All existing Collective Bargaining Agreements should remain in their entirety until their expiration. DoD signed off on these must abide by these agreements. Otherwise, their word on any piece of paper is worthless. There is no need for a National Security Labor Relations Board (NSLRB). The Federal Labor Relations Authority is an independent Agency and has done a fine job thank you. A NSLRB would not be a fair arbitrator of labor/management disputes and it is laughable to think it could be. What, the DoD would punish itself if a finding of an unfair labor practice charge was set against them? Like managers who investigate grievance charges against themselves ever find themselves in violation of a bargaining agreement? DoD must be subject to an independent third party such as the FLRA in any labor management dispute. Scope of Bargaining - Why was collective bargaining allowed for in the first place. To ensure that employees have a say over management actions that impact them in a variety ways. To greatly limit the scope of bargaining essentially censors employees and keeps them quiet. These rules were not made to make DoD more flexible, they were created to destroy the effectiveness of Unions. Staff level attorneys and clericals staff from personnel human resource departments that do not deal with confidential labor relations issues, should not be excluded from appropriate units for representation. Representation rights and duties - The proposed regulations take away the right for employees subject to an examination by an agency official in connection with an investigation to request a union representative if the investigation is conducted by the Offices of the Inspectors General and other independent Department or Component organizations whose mission includes the conduct of criminal investigations, such as the Army Criminal Investigation Division and the Air Force Office of Special Investigations. This must remain. As stated above, representation is an inalienable right and should not be hampered in any way. Why hamper a Union?s right to be present at any formal meeting as has been determined by the FLRA? By limiting these meetings, again, DoD is effectively censoring employees. No more robust bargaining by holding union representatives subject to the same standards of conduct as any other employee, even when they are on official time? This has the potential to go well beyond stopping abusive language or conduct and will hamper Union officials by placing them in a subservient role to a supervisor who they may be dealing with. All this allows for is effectively wakening a Union?s ability to represent employees. If does nothing for assisting DoD with more flexibility. Robust bargaining as has been established under existing labor law must continue in its entirety. Information requests - Under NSPS, DoD managers will not have to disclose information if they believe that adequate alternative means exist for obtaining the information, or that proper discussion, understanding, or negotiation of a particular subject within the scope of collective bargaining is possible without the information. And so, Unions will never again be bale to obtain information from management. Under current rules, it is difficult enough for Unions to meet the Particularized need rule the FLRA has established in justifying the need for information. The NSPS rules effectively do away with any Union right under 7114(b)(4). Keep Unfair labor practices under the auspices of the FLRA and keep all rules for their filing, including deadlines, the same! I do not see how a tried and trusted deadline needs to be reduced without justification. DoD may require that bargaining take place at a level that involves multiple units, for example, a change affecting an entire installation. This can not work as each Union represents specific bargaining units that may have different issues or needs. Impasse proceedings belong in the hands of a third unbiased Part such as the Federal Services Impasses Panel. Otherwise, the DoD Board will always find in favor of itself in negotiations. There will be no true way to break a stalemate during negotiations. Congress created the FSIP for just such a purpose. What justification has been given for DoD to use their own process? Collective bargaining agreements must be subject to union ratification. DoD has no business telling Union members what agreements they can or can?t accept. That would be interfering with internal union business. The only counter would be that there would no longer be Agency Head Review which is the equivalent process for management?s ratification. Would DoD give that up? NSPS excludes performance appraisal ratings and mandatory removal offenses from the scope of the grievance procedure. Why? Because Agencies tend to loose these types of cases. So of course DoD wants to remove it. Since there is no other justification for barring these issues from grievances, it should not be allowed. Exceptions to arbitration awards cannot be filed with the internal Board because again, the element of a unbiased third party has been removed. The Board will never find that DoD has done anything wrong. The FLRA must remain the exclusive body to review exceptions to arbitrator?s awards. Sincerely,