| Comment Number: | EM-022807 |
| Received: | 3/16/2005 4:08:27 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 16, 2005 DoD NSPS Comments , DoD NSPS Comments: omments Docket Number: NSPS-2005-001 RIN: 3206-AK76, or 0790-AH82 The Case for Action There is no indication that the new authorities granted to DoD will produce a more effective or efficient accomplishment of the DoD mission. To the contrary, the overwhelming experience in the federal sector with pay for performance plans has been a dismal failure. That includes both the historical efforts and the current efforts under the current administrations ?management flexibilities? just ask the employees of the Transportation Security Agency, or the managers at NASA. NSPS is not necessary to reduce the dependence on the military performing work that could be done by civilians. The directives from Congress to DoD to make that happen date back to the Clinton administration, all that is necessary is for DoD to make the conversions. It is happening where DoD can move those positions directly to contractor provided services rather than having the work done by Civil Service ? just ask DoD about how quickly they were able to move security services to the private sector once they found a no-bid Native 8(a) option to do it Motivation of employees is provided by recognizing their efforts. The current law, if properly applied has provisions for recognition of outstanding performers, including monetary awards and step increases. DoD always has had the option of attaching duties to postions, and working through OPM the ability to appropriately reward employees. There is also in the current law a provision to pay employees for extraordinary working conditions, DoD should not be granted any new personnel authorities until it can show an historical record of its attempts to use the current provisions of law Mission effectiveness is improved when people feel they are part of a team ? that is why the military spends so much time building psychological training models to strengthen teamwork. Enhanced national security is developed by all of us looking out for threats against our team, not by looking inward to see how we can best position ourselves for personal reward. What is critical in the global war on terrorism is the UNITED state we are in, not in a state of seeking individual recognition and reward. Nearly all experts in the field of labor will tell you that the most efficiency is gained when employee input is increased regarding working conditions, not removed as the NSPS does (9901.910, 917, 920). The days of overseers and straw-bosses and whipping boys are long past. DoD?s attempts to establish dictatorial powers sends a direct and unmistakable message to employees: ?your ideas and input to accomplish the mission are not necessary and are in fact unwanted?. That was made clear in DoD?s construction of the authorizing legislation 5 USC 9902(m)(7) and is further enforced in the proposed regulations 9901. 910(a)(1), (2) & (b), which remove the option for DoD management and employees to negotiate on the how the mission might best be accomplished. When DoD kills the provisions allowing for employee input, it cannot pass the straight face test saying they are seeking improvements in flexibilities. In fact the opposite is true ? DoD is removing the option for a flexible system and requiring that all of DoD follow the narrow, inflexible, all must comply system defined by a few politically driven idealogues ? including the Secretary of Defense. If DoD has 20 years of experience with transformational personnel demonstration projects, then why do these regulations only provide a skeletal framework of ideas, rather than the meat of specifics. After all with 20 years of experience, there must be some rules written down somewhere, or is the idea (more likely) that DoD prefers there to be no rules, only the unreviewable opinion of the Secretary and his minions. DoD makes much of saying that the Department wishes to utilize civilians where it currently employs military; 9901.910(a)?nothing in this subpart may affect the authority of management to?(2)?to assign employees to meet any operational demand. (b)Management is PROHIBITED from bargaining over exercising the authorities in (a)(1) and (2).. There is nothing in the current law that prohibits this, in fact it has been directed by Congress that DoD replace the non-combatant roles of military with civilians. DoD simply needs to carry out this option. If DoD would focus its efforts on utilizing its existing workforce and stop its attempts to remove any due process of civil servants and taxpayer protections through rewrites of the OMB Circular A-76 process, perhaps they would be meeting the intent of Congress to utilize DoD civilian employees. The option to deploy civilians is also currently available to DoD, they simply must identify the positions as ?emergency essential?. The difference being that the employee knows at the time they take the position that they are subject to deployment. Process The fact that the employee unions, who are the representatives of the employees, who are the major stakeholders in the new personnel system have had to file a lawsuit over DoD?s and OPM?s failures to follow the authorizing statute provisions regarding input to the design of the new system is an indication to the degree that the DoD has missed the target of including the opinions of the affected workforce. Most if not all of the ?outreach? attempts by DoD were merely window dressing, that is more opaque than transparent. Designed to satisfy the blind eye of those in Congress who will support DoD?s flimsy efforts to include employee groups. This is truly a system designed by the few, for the benefit of those few, and the confirmation is in the lack of details ? relying instead on those future ?implementing issuances?, where DoD hopes to keep the prying eyes of Congress and the public from seeing their true actions. Pay provisions. 9901.373 DoD does promise to place employees into a NSPS pay band with their initial pay being the same, but the ?WIGI Buyout? which is discussed on pages 7573 & 74 of the introduction to the regulations does not appear in the proposed regulations. Must be another of those issues DoD will take care of with an ?implementing issuance?. Charles S. Abell, principal deputy under secretary of defense for personnel says that DoD has over 20 years of experience with pay for performance systems, where are the details of that experience?It is irresponsible of OPM to allow DoD to subject civil service employees of the Department to an undefined pay system. 9901.313 says that the amount allocated for compensation (basic pay and any geographic adjustment)of the entire DoD workforce through 2008 will be the same as if there had been no departure from Title 5. No new money is added to the pay system, so the only way for the romises of being paid more for performance can happen is if DoD robs from Paula to pay Paul. This does not lend itself to ?teamwork? concepts. And there is no savings to taxpayers from this approach, only the added $125 million of moving to a system that removes the color of law, due process for employees, and transparency for taxpayers. 9901.321, .322, and .323 speak about setting the ranges of pay within bands, adjusting those rates, and eligibility to receive an increase to a band. DoD (not Congress) in its sole and exclusive discretion may set and adjust rates depending on a variety of factors including ?availability of funds?, this presents a constitutional problem. It is the authority of Congress to set the appropriations for pay of civil servants. 9901.341, .342, .343, and .344 speak to the pay for performance concepts, this is a system that is wholly built on a subjective, arbitrary and capricious foundation, and to add insult to the injury, exempted from the negotiated grievance procedure [9901.922(c)(4)]in favor of an as yet undefined internal DoD process. 9901.409 ?(a) implementing issuance will establish a multi-level rating system (back to the 5 step system DoD said was unmanageable and abandoned in favor of pass/fail), (b)(1) rating of record will be basis for pay, (g)may only be challenged by reconsideration procedure (undefined) provided by implementing issuance ? a payout determination (your PAY) will not be subject to reconsideration process. This is not a fair system which protects due process!??? 9901.409(d) performance is rewarded with a share. Share defined? No ? future issuance. Summary: The replacement of a true civil service system as envisioned by Congress with the provisions of 5 USC, the rights of employees to form and support a union of their choice, the obligations of management to negotiate over working conditions, should be enhanced by any changes to the law. Not simply removed as these provisions do. DoD should start over, and OPM should stand up and take the role envisioned by Congress, rather than idly standing by as a political patsy. I am angry that these proposals seem to treat the employees who help defend our country as the enemy. Most DoD employees work hard and are committed. 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. Annual Pay Raises Under the General Schedule and FWS, employee pay was clear. It was funded by Congress and could not be taken away. However, NSPS will take away this certainty. Salaries and bonuses are funded by DoD. In the past ? as recently as just last year ? DoD did not fund its awards program. Given the agency?s miserable record on this issue, how can employees feel confident that our salaries and bonuses will be funded in the future? ?Friend of the Supervisor? Pay System With the new patronage pay system, which DoD calls ?pay for performance,? the amount of a worker's salary will depend almost completely on the personal judgment of his or her manager. This system will force workers to compete with one another for pay raises, which will destroy teamwork, increase conflict among employees, and reward short-term outcomes. There is no guarantee that even the best workers will receive a pay raise or that the pay offered will be fair or competitive. This system will create a situation in which workers are in conflict with one another and afraid to speak out about harassment, violations of the law, and workplace safety problems. Furthermore, there will be no impartial appeal system to assure that everyone is treated fairly. Schedules and Overtime NSPS will allow managers to schedule employees to work without sufficient advance notice of schedule changes. This will make it extremely difficult for working parents to care for their children and family. It will also mean that abusive managers could harass employees with bad schedules or short notice. Overtime rotations can be canceled, which means that employees may not be able to plan adequately for childcare and other important responsibilities. Civilian Deployment Federal employees could be assigned anywhere in the world, even into a war zone, with little or no notice. Public employees are proud to serve our country, but they are also responsible for caring for their families and personal obligations. America is at war. We are fighting for democracy abroad. But these regulations are an attack on workers? basic rights. Furthermore, NSPS will divert the attention of defense workers from the soldiers? welfare to protecting themselves from abuse on the job. I urge you to force DoD to rethink this proposal. We need work rules that preserve fairness, serve the American people, and respect the rights of Defense Department workers. Sincerely,