| Comment Number: | EM-017571 |
| Received: | 3/14/2005 5:13:19 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:
Many of the proposed regulations are vague and incomplete; many state that it is to be established in ?implementing issuances?. Without all of complete changes listed on the federal register open for public comment, there should be no changes allowed to take place. There are no problems with the current system. Civilian employees and their current rights under the current laws are not a threat to our national security. Subpart B: Classification ? These changes are not listed, instead, the system will be announced in an ?implementing issuance? not published in the Federal Register for public comment. The proposed regulations would provide for adjustments to pay bands to reflect local market conditions, which seems to contemplate cost-of-living increases though there is no indication as these adjustments will be determined or how often they will occur. The proposed regulations indicate that when an employee is reduced in pay due to a reduction in force, the employee may get some sort of pay retention but no details are provided. DOD should assure its employees that if they were reduced to a lower pay band without personal fault (eg, reassignment to a lower paying position to accommodate a disability), they would not suffer a loss in pay. What will happen to compensatory time, Sunday pay, night pay, hazardous duty pay and holiday pay? As things now stand, DOD can abolish all these types of pay. 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. 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). Performance ratings would not be grievable but could be challenged through some other procedure yet to be designed. If those systems are not with an impartial third party then they should not be allowed to be implemented. 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. Subpart F: Reductions in Force 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. Veterns should not loose their preference in RIFs. An employees years of service must be the number one determining factor in ranking for a RIF. Subpart G: Adverse Actions The proposal would provide for ?mandatory removal offenses? (MRO) for which no reduction in the penalty would be allowed. No list of such offenses is given. The NSPS proposal says that the Secretary can issue and change the MRO list at will. The current law 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 which is not fair due process. Subpart H: Appeals 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. 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. 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. 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 unconstitutional. The Constitution assures that any public employee who can be removed only for good cause has a right to a hearing. 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. If it is determined that there was harmful error or that the penalty was excessive the MSPB should be allowed to mitigate the penalty. Under the proposed regulations, the only basis for mitigating a penalty would be that it is ?so disproportionate to the basis for the action as to be wholly without justification.? The MSPS?s most recent annual report to Congress is typical: in FY 2003, MSPB affirmed 80% of all agency actions and mitigated penalties in only 3% of appeals. In DOD, MSPB affirmed 88% of agency actions and mitigated penalties in 2.9% of appeals. 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. The proposed regulations also attempt to ensure that employees who are successful in appealing adverse actions do not recover attorney?s fees. If an agency is found to be at fault with harmful error then it should be responsible for attorney fees to the harmed employee. 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 MSPB?s most recent annual report says that exactly 7 (yes, 7) DOD employees got their adverse actions reversed or mitigated at MSPB in FY 2003. 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 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 Labor-Management Relations?Subpart I This subpart is nothing but an assault on the concepts of collective bargaining and grievance/arbitration. Nearly all changes of any significance will be considered ?management?s rights? and not subject to negotiations. For those topics where some sort of bargaining is still allowed, impasses will be resolved not by a third-party but by the Secretary?s hand-picked NSLRB. Under the proposed regulations, the definition of conditions of employment is modified so as to exclude determinations regarding pay (how could anything better fit the definition of a ?condition of employment? pay?). 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. 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. The NSLRB would decide all unfair labor practice issues and would rule on all appeals from arbitration decisions (except decisions involving adverse actions) 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. 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 NLRB as well). The message is that union representatives will have no protection for any kind of vigorous expression of their viewpoints. All of the above noted changes are wrong and should not be allowed implementation. DOD claims: The NSPS is a transformation lever to enhance the Department's ability to execute its national security mission. This is completely false; DOD civilian employees are not a threat to the nations security. There is no rational to do these changes other than to wipe out the basic worker rights that have been established for over 100 years. The US government is the largest employee in the USA; these changes are a poor example of how to treat your employees. DOD is trying to be like Wal-Mart, who is continually getting sued because of employee issues. Soon DOD employees will have to sue the DOD at federal district court to get a fair an impartial decision on an employment issue; wasting the taxpayers millions of dollars. Employees working at the local hamburger stand will have more rights than a DOD employee. Please let me know what number this is assigned so that I can review it on the NSPS webpage.