EM-023030.htm

Comment Number:	EM-023030
Received:	3/16/2005 10:05:27 AM
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:

DoD NSPS Comments , DoD NSPS Comments: 2101 Tangerine Street Orlando, FL 32803-6533 16 March 2005 TO: Program Executive Office National Security Personnel System Attn: Bradley B. Bunn 1400 Key Boulevard, Suite B-200 Arlington, VA 22209-5144 nspscomments@cpms.osd.mil http://www.cpms.osd.mil/nsps Re: National Security Personnel System, comments docket number: NSPS-2005-001 Regulatory Information Number (RIN) 3206-AK76 or 0790-AH82 Federal Register entry at Vol. 70, No. 29, pp. 7551-7603. Public Law 108-136, Chapter 99: DoD National Security Personnel System Federal Register entry at Vol 70, No. 29, pp. 7551-7603: Part II, Department of Defense Office of Personnel Management, 5 CFR Chapter 99 and Part 9901 National Security Personnel System; Proposed Rule Gentlemen and Ladies, I have reviewed the entry in the Federal Register (FR) describing the proposed National Security Personnel System (NSPS), and have the following comments, which I wish you to consider. This document is a more recent version of one, which was mailed on paper 12 February 2005. As such, this version should be used if both versions are available. I am sending my comments both on paper and electronically because this is a very important issue, and I want to make sure my comments are received and not lost. The proposed NSPS ("Rule"), as documented in the Federal Register (FR) is peppered with no less than 148 references to unspecified details that are to be further defined by "implementing issuances" which are to have the authority of law within DoD. It does not take much imagination to recognize that such issuances could result in a wide range of results depending on what they say. These "issuances" need to be specified before anyone will be able to render an informed opinion as to the quality of this proposed System. Each such undefined issuance presents an opportunity or loophole for potential abuse. After seeing what liberties have been taken with interpretation of the word "flexible," we should all be concerned over what these issuances may say. Furthermore, the Rule specifies that these undefined issuances will be binding and non-negotiable. If this Rule is accepted, as it is currently stated in the FR, then we would be accepting the issuances without first knowing what they are. Only fools would agree to be bound by rules without first knowing what they are. I am further concerned that by so empowering such "issuances," the proposed Rule could result in a system that is accountable to no one. I suspect that this may be what Kay Coles James, Director of OPM, was referring to in her letter of March 9, 2004, to Secretary Rumsfeld, concerning an earlier proposed version of NSPS, in which she said: "Once those enabling regulations are published in the CFR, you will be in a position to issue as many standardized, detailed internal NSPS implementing directives as and when you see fit, including the document you have provided us for comment, generally without further public comment, formal collaboration with unions, or OPM approval." It is perhaps also noteworthy, that earlier in that same letter, the Director stated: "we beilieve the proposal may be contrary to law, ...." Hence, it has occurred to me that the proposed Rule, with its numerous inclusions by reference of as-yet unspecified "issuances," is just the mechanism that the Director has recommended in order to implement a system which she has already raised concerns may be "contrary to law." The proposed Rule takes power from all three branches of the federal government. I am also concerned that the unchecked authority that this rule claims, on the part of the Secretary of Defense to waive and modify laws, and to write implementing issuances which carry the same authority of law, without being subject to review by Congress or any other checks or balances, could have the effect of creating an independent branch of the federal Government -- one with no checks or balances on its authority, accountable to no one. My concern is further increased by sections that appear to dictate how judges must interpret these rules or that claim authority on the part of DoD to unilaterally modify, remand, or reverse the decisions of such judges; thereby usurping power from our judicial branch of government. Finally, section 9901.927(b) claims authority, on the part of DoD, its components, and this Rule, to overrule Executive Orders of the President through "issuances." I do not consider myself a Constitutional scholar, but it was my understanding that only Congress, subject to the approval of the President, had the authority to create or modify laws, and only the Judicial branch of government, or the Congress with Presidential approval, could invalidate laws, but this proposed Rule empowers the Secretary and DoD component commanders, through "issuances" to modify and waive laws. This seems Unconstitutional to me. It is also my understanding from our Constitution that the President is "commander in chief" of the armed forces and that all of DoD, including the Secretary of Defense, is part of the Executive branch of our government and is therefore subordinate to the President; yet Section 9901.927(b) appears to subordinate Executive Orders of the President to DoD implementing issuances. I am concerned that such Constitutional abuses, if not checked, could, in the wrong hands, contribute to a military takeover of our government. When we implement such rules, we must be mindful of the fact that future leaders may not have the same wisdom, character, or integrity as our current leaders, and all are subject to relentless attempts at manipulation. The statutory requirement that the new system be "flexible" may have been misinterpreted in the development of the proposed Rule. Surely, it was not intended that this would grant SecDef carte blanche authority to do whatever he wanted, whenever he wanted, with DoD personnel, and yet, that appears to be exactly what the Secretary is attempting to enable with this proposed Rule. The proposed Rule repeatedly mocks the requirements of sections 9902(h)(A) and (B)(i) of Public Law 108-136, which require any appeals; process established under this law to be fair and afford the protections of due process, and section (m)(6) which requires "independent third party review of decisions, including what decisions are reviewable by the third party, what third party would conduct the review, and the standard or standards for that review." Instead, all such authority appears to be delegated to a National Security Labor Relations Board (sec. 9901.907, FR p. 7596) , that is made up of members appointed by the Secretary for limited terms, and the Secretary can add members to this Board at any time and without limit. As such, this Board can hardly be regarded as independent or a third party, and since the Secretary or DoD will surely be a party to every matter which comes before this Board, giving it authority to decide such matters can hardly be regarded as fair or anything representing due process. As requested, my comments are arranged by section number as laid out in the FR. FR page numbers refer to the subject entry in volume 70, no. 29 of the Federal Register. I did not flag all the unspecified details to be addressed in implementing "issuances." These parts can be found easily enough with a simple word search. To explicitly flag them all could be so redundant as to be distracting. These are only the first comments that have come to my mind during a first and single reading of the Proposed Rule. I have not had sufficient time between the publication of this Rule and the closing date for submitting comments to complete a thorough study of this matter, or to properly proofread these comments, so I am sure there are many significant ramifications that I have not noticed, anticipated, or commented on. I also expect that, despite their considerable effort, there are many potential consequences that the designers of this Rule have not anticipated. [FR, Page 7552] The Case for Action This section makes many sweeping assertions and predictions which I do not believe are valid or can be supported. On the contrary, some of them have already been shown not to work in Iraq. "'* * * a future force that is defined less by size and more by mobility and swiftness, one that is easier to deploy and sustain, one that relies more heavily on stealth, precision weaponry, and information technologies.'" It was this very doctrine, in disregard of the expert recommendations of top Army leadership, that has led us to our current quagmire in Iraq. We should recall General Shinseki's predictions of a large force required to win and keep the peace, confidence that we could accomplish, which were overruled by SecDef on confidence that we could win the war with a much smaller force. Well, we did overthrow the Iraqi government with a small force, but true to General S's predictions, we see now that a very large force is required in order to win and keep the peace. Obviously, the doctrine described by the quote above has not worked, and we find ourselves in trouble now because of it. The Army is having difficulties with recruitment and retention. Service commitments are being involuntarily extended in order to maintain necessary numbers. I am concerned that this weakened state presents a real and present threat to our national security, particularly if some sovereign (or virtual) nation should decide to actually attack the United States at this time. With current problems maintaining active-duty strength, it seems to me to be a particularly bad time to think about reorganizing the civilian workforce -- particularly toward a system which has already proven to be disastrous. The proposed transformations are far reaching and profound. The study of biological evolution has shown that the well-tuned systems that we see in modern-day plants and animals have evolved as a result of many small changes over a long period of time. Extensive changes to an organism are usually fatal. I am concerned that the extensive changes proposed by NSPS may have a similar effect on DoD. The proposed changes will have far-reaching effects. Most of them probably cannot be accurately anticipated at this time. While some such changes may be good, many will be bad. I am concerned that making such radical changes all at once could cripple our national security with many similarities to the radical changes that we've seen in the infrastructures of Iraq in recent years. As such, NSPS presents a threat to national security. I submit that if we wish to improve our national security, making many small changes, one at a time, will be more likely to ultimately improve the system without wrecking it. [FR, Page 7553] "The Department's 20 years of experience with transformational personnel demonstration projects, covering nearly 30,000 DoD employees, has shown that fundamental change in personnel management has positive results on individual career growth and opportunities, workforce responsiveness, and innovation; all these things multiply mission effectiveness." I presume that we are talking here about "pay banding", "pay for performance", or "performance-based pay." While these concepts may sound good, in practice, at best, they are subjective, and they will probably be subject to limited quota systems regardless of performance. It is my understanding that under such systems a disproportionate share of the benefits has gone to Management at the expense of Labor. I am certain that "performance-based" pay will result in more arguments and disharmony over performance evaluations and that this could possibly lead to more violence in the workplace. Such a reward system invites cronyism and intensifies "office politics." I am also concerned that under such a system, we will see a gradual evolution toward what we have seen in the private sector, where CEOs of large corporations may reap salaries as much as 400 times those of the lowest-paid workers. This smacks of corruption in the corporate boardrooms at the expense of labor, and it does not encourage teamwork. It also exacerbates the division of wealth across the population (a few very rich people controlling and manipulating a lot of poor people, with little or no middle class). Such divisiveness sets the stage for civil unrest such as we saw in the Civil Rights movement and leading up to the French, Spanish, and Bolshevik revolutions -- another potential threat to national security. I am concerned about the meaning of the word "flexibility." It has been asserted that under NSPS, management will have authority to reassign employees, at any time, either temporarily or permanently, to duty anywhere in the world. I expect that many civilian employees will find such assignments unsatisfactory, and this could result in difficulties in recruiting and retention of the best available employees -- similar to problems such as are now being experienced in the Army with active-duty personnel. It is my understanding from recent training that the idea of federal civil service does not even occur to most new college graduates. If we make civil service even less attractive (with the specter of potentially getting jerked from one place to another, without any say in it, while one is trying to raise a family), then even fewer are likely to consider civil service. Concerning performance-based pay, "As the Department moves away from the General Schedule system, it will become more competitive in setting salaries and it will be able to adjust salaries based on various factors, including labor market conditions, performance, and changes in duties. The HR management system will be the foundation for a leaner, more flexible support structure and will help attract skilled, talented, and motivated people, while also retaining and improving the skills of the existing workforce." I do not believe that these changes can be accurately predicted. What evidence exists to support this prediction? What does "leaner, more flexible" mean? If it means that all positions are less secure than before, I expect that we will have greater difficulty (not less) in attracting and retaining the "skilled, talented, and motivated people." In the extreme, I suppose it could be construed to mean that people will be hired and released by project. While some may like working this way, many do not, but even if all did, such a practice effectively eliminates corporate memory of past projects (i.e., when few if any of the engineers who worked on them are still around.). Such corporate memory is important to the life cycle of a system. Modifications are more expensive if every time one is needed a whole new team has to learn how the system works. At best, each new team will still not understand all the nuances of the previous designs and changes, and as modifications are made, past designs will be corrupted. What does "competitive in setting salaries" mean? If all government executives are paid salaries greater than or equal to the average for their counterparts in private industry, and private industry does likewise, this can only result in executive salaries spiraling out of control as they already have in the private sector. Everybody can't all be above average. Improving the skills of the existing workforce is a good idea and one in which I believe we can improve our current system without implementing NSPS. Authority to Establish a New HR System [FR, Page 7554] "Also, in establishing the system, only certain provisions of title 5 may be waived or modified by DoD and OPM: Chapter 31, 33, and 35 (dealing with staffing, employment, and workforce shaping, as authorized by 5 U.S.C. 9902(k)); Chapter 43 (dealing with performance appraisal systems); Chapter 51 (dealing with General Schedule job classification); Chapter 53 (dealing with pay for General Schedule employees, pay and job grading for Federal Wage System employees, and pay for certain other employees); Subchapter V of chapter 55 (dealing with premium pay), except section 5545b (dealing with firefighter pay); Chapter 75 (dealing with adverse actions); and Chapter 77 (dealing with appeal of adverse actions and certain other actions). "In planning, developing, implementing, and adjusting NSPS established under subsection (a), DoD and OPM must use procedures that provide employee representatives with an opportunity to participate and collaborate in the process." The feedback I have gotten from my union so far is that, while there have been meetings with union representatives, little, if any union or employee participation or collaboration in the process has been allowed. In this regard, there may have been a violation of the enabling statute. At the agency where I work, Management has actually obstructed employee representation. If all these chapters of 5 USC are to be waived, then we are talking about profound far-reaching changes. I cannot understand how anyone could consider it prudent to make such far-reaching changes all at once -- especially in our current already-weakened state of national security. Depending on how these changes pan out in practice, it could devastate our civilian workforce and thereby put our national security at risk. If such changes are to be implemented at all, they should be done only in small increments, with time to evaluate results before proceeding further. I am concerned about the effects of "DoD and OPM are not limited by any provision of title 5 or implementing regulations relating to-- * The methods of establishing qualification requirements for, recruitment for, and appointments to positions; * The methods of assigning, reassigning, detailing, transferring, or promoting employees; and * The methods of reducing overall agency staff and grade levels, except that performance, veterans' preference, tenure of employment, length of service, and such other factors as the Secretary considers necessary and appropriate must be considered in decisions to realign or reorganize the Department's workforce." If these methods are to be modified, it could have an adverse effect on employee recruitment and retention. If we expect to have loyal employees (as team members), we need to be loyal employers. Length of service should be a relevant factor in staffing cutbacks. "[O]ther factors as the Secretary considers necessary and appropriate" is too vague. Indeed, what impediment would there be to a Secretary against considering race, gender, national origin, sexual orientation, religion, ethnicity, political views, or even favorite football team to be "necessary and appropriate"? If SecDef has unilateral authority to make such changes across all of DoD whenever he chooses, without requiring approval of Congress, then I am also concerned about the stability of our DoD workforce. These are sweeping changes. Bad changes, or changes that made too often could wreck our DoD workforce, thereby threatening national security -- not to mention the economic cost of the changes and whatever problems stem from them. A reckless SecDef could effectively destroy our defense department by exercising such authority. For example, the current application of our Army in Iraq has been disastrous. Since the persons who orchestrated that operation are still in charge, I think now is an especially bad time to let them reorganize the DoD personnel system. Even if the current leaders had stellar records, there is no reliable way to guarantee that poorer performers will not someday be in charge. So concentrating this sort of power over our collective defense in the hands of so few persons without requiring Congressional approval is to play Russian roulette with our national security. What will we be able to do if we get a SecDef who is truly incompetent, or malicious? Once confirmed, he serves at the pleasure of the President. Is there a Constitutional way to remove a cabinet secretary without his or the President's cooperation? "Subsection (m) establishes collaboration requirements to give employee representatives the opportunity to participate in developing, implementing, and adjusting the labor relations system." From what I have heard, any participation by employee representatives has been at best a formality, including limited opportunities to file comments but no participation in actual development. This may be a violation of the enabling statute. Process Leadership I further note that the Process - Leadership section (FR pp. 7554-55) does not mention involvement of employees or their representatives. [FR, Page 7555] Guiding Principles and Key Performance Parameters (KPPs) I am concerned that the Guiding Principle "Put mission first" could be misconstrued to preempt respect for the individual and protection of rights guaranteed by law. Indeed, if we are in the midst of an ongoing terrorist attack, that is not a good time for security guards to ask to be excused to confer with their stewards or to be involved in collective-bargaining contract negotiations; but even when we are not under attack, there is still always some mission work to be done. If any mission work is to always preempt any representation, then this interpretation eliminates representation altogether. I do not believe that was the intent of Congress when Public Law 108-136 was passed. Employee representation is already being obstructed by Management where I work. I am concerned that the "Put mission first" KPP will be construed as an official blessing of such obstruction of representation. The goal, "Be competitive and cost effective" could be subject to abuse. For example, private-sector concerns who are doing research or development under contract, and which must be profitable in order to survive, have little or no incentive to do anything above or beyond the least work which could possibly be construed to meet the line items specified in their contract. It is impossible for government personnel writing the contract to anticipate all possible details which may come up, and there is no incentive for the contractor to explore unanticipated problems which come up or to volunteer solutions to them. To do so would cut into their profit. Such issues also provide opportunities for contract modifications or extensions involving additional funding. The Government has little control of the actual costs of such unanticipated scenarios. On the other hand, when such work is done by Government employees, the Government has much more control, and there is no profit-driven disincentive to fix deficiencies as they are discovered. Given this fundamental difference between government and profit-driven contractors, I am concerned that any competition, based on "cost effectiveness," between government and non-government employees cannot be wholly fair. Furthermore, private concerns are able to hire expensive advertising and lobbying services to promote themselves, whereas government employees have no such resources to advocate for them in competitions with private industry. I am concerned about the implementation of the Key Performance Parameter "High Performing: Employees/supervisors are compensated/retained based on performance/contribution to mission." Indeed, persons who contribute substantially to mission should be rewarded, but I am concerned that tying of salary to such contributions will provoke a lot of arguing over performance evaluations, arguing over the relative values of contributions, and possible violence in the workplace. Opportunities to contribute are not uniformly distributed. How should a clerk who processes travel claims be rewarded? Should he be paid based on the number of claims processed per year? That would encourage him to do them faster and provides no incentive for accuracy or diligence. Is experience at processing claims of any value? How should an engineer whose designs are not implemented (perhaps due to program cancellation or being moved to a different project) be compensated or rewarded compared to one whose designs are implemented? How does one measure the performance of persons doing research and development? If it is measured by number of breakthroughs and problems solved. Nobody will want to work on the hard problems. How does one measure the performance of physicians or attorneys who handle risky cases? How does one measure the performance of a manager or executive? How should an employee whose time is divided between two or more projects be compared to one who works only one project? What arrangements will be made to compensate for the effects of interference (or harassment) by Management in employees' work? I expect that those with whose work top management is most familiar will get higher rewards simply because the management doling out those rewards is more familiar with their work and not because it is any better than the work of others. This will create an incentive for employees to spend less time being productive and more time shmoozing with management. I am concerned about the meaning of "Agile and Responsive: Workforce can be easily sized, shaped, and deployed to meet changing mission requirements." This sounds like no more job security. If its implementation results in less job security, it could make it more difficult to attract and retain the best employees. It also facilitates political appointments and an entire workforce turnover with every change in administration -- something I understand 5 USC was put in place to stop. "Credible and Trusted: System assures openness, clarity, accountability and merit principles" certainly sounds good, but I am concerned that the whole system will still be corrupted by the compensation KPP discussed above. "Schedule: NSPS will be operational and demonstrate success prior to November 2009" may not be soon enough, since we will have a new President and most probably a different SecDef by then, and he or she may want to do something different. [FR, Page 7556] General Provisions--Subpart A [FR, Page 7557] Eligibility and Coverage: Why are SES members being treated differently? Scope of Authority lists several sections of 5 USC (concerning staffing, performance appraisal, classification, pay, labor relations, adverse actions and appeals) which may be waived. These are important sections. If they are to be waived, they must be replaced with something. I feel that their replacements should at least be defined before such waivers of the original rules are authorized. Coordination between DoD and OPM. What does "DoD requires an agile and responsive civilian personnel system..." mean? If it means less job security, it will have an adverse effect on our ability to recruit and retain top talent. Continuing Collaboration "'30/30/30' process." This proposed regulation is very long and replaces regulations and statutes which are also very long and have considerable implications. 30 days is insufficient to adequately review and comment on such extensive changes. "For example, the proposed regulations provide for an administrative process in which employees may seek reconsideration of their performance ratings; this is to ensure transparency in the performance management system. The specific procedures for that reconsideration process are not spelled out in these [FR, Page 7558] proposed regulations...." If pay is tied to such performance ratings, then we can be certain there will be disagreements over performance ratings. The reconsideration process needs to be defined before this system goes into effect. Until the reconsideration process is defined, there is no such process. Lack of such a process will only magnify and prolong discontent between employees and supervisors which is certain to erupt over performance ratings which affect pay, promotion, demotion, and continued employment. Without a defined procedure to try first, many dissatisfied employees may choose to litigate. There may also be an increased risk of workplace violence when an employee feels he has been cheated and has no avenue of appeal. If this system is to work, it is important that supervisors and employees understand and agree on ratings. The chances of resolving disagreements are greater if procedures exist for doing that. Relationship to Other Provisions of the Law. I am concerned about the meaning of "Each provision of this part must be construed to promote the swift, flexible, effective day-to-day accomplishment of this mission, as defined by the Secretary. The interpretation of the regulations in this part by DoD and OPM must be accorded great deference." This appears to be an attempt to strip the courts of the authority to interpret and as such may be Unconstitutional. Also, limiting interpretation to SecDef, DoD and OPM, begs the question: Where are the checks and balances? What impediment exists to block SecDef, DoD, or OPM from imposing any "interpretation" they see fit, regardless of the meanings of the actual words that are used? To whom does one appeal if one does not like their interpretation? If their interpretation is not subject to review by the courts, then perhaps I am wasting my time by reviewing this FR entry, and what I should be really be reviewing is a description of SecDef, DoD, and OPM's interpretations of it -- and yet, those interpretations are not available. This interpretive authority could become a huge loophole through which SecDef, DoD, or OPM could bypass the legislative authority of Congress or the President to augment or curtail the law to make it mean whatever they want it to mean. In effect, it could create a new branch of government -- one with no checks or balances on its power. Classification--Subpart B [FR, Page 7559] "The new classification system for DoD will result in a streamlined method of classifying positions that no longer relies on lengthy classification standards and position descriptions." Surely, some classification standards and position descriptions are warranted, although, they should not need to be lengthy. On first reading, "the merit system principle that 'equal pay should be provided for work of equal value, with appropriate consideration of both national and local rates paid by employers in the private sector, and appropriate incentives and recognition * * * for excellence in performance'" sounds like a great idea, but in actuality, when we consider the relationship between current private-sector and government pay scales, it seems to suggest a significant pay raise for almost everyone. Is the defense appropriation from Congress to be increased that much? I suspect not. In practice, I anticipate a feeding frenzy over the redistribution of pay, with Management winning substantial increases at the expense of Labor. Obviously, if the overall budget is not to be increased, we cannot give some people significant pay raises without reducing pay for others. I expect Management to be the overall beneficiary of this process because Management has the power to assign work, and to set salaries. Labor is at a serious disadvantage to negotiate such matters when Management can assign work which preempts participation in such negotiations. I am also concerned that many employees whose pay is reduced by this process may leave government service, and without labor, all production grinds to a halt. Pay and Pay Administration--Subpart C "This new system links pay to employees' performance ratings and is designed to promote a high-performance culture within DoD." On the surface, this seems very sensible. However, in practice, I am concerned that it will (1) provoke much more argument (and its attendant administrative burden) over performance ratings than we have to day and could provoke violence in the workplace on the part of severely disgruntled employees, and (2) without a substantial increase in the budget for salaries, a disproportionate share of performance ratings that warrant pay increases will go first to Management1 (who control the ratings) at the expense of Labor. I am concerned that after Management takes what they feel they deserve in pay raises, there will be insufficient amounts left to satisfy Labor, and we could suffer a brain drain. Our best and brightest performers will likely be the first to leave. Furthermore, since the budgets for salary will surely be limited, I expect that any connection between pay and performance will be superficial at best and will probably be implemented as some sort of quota system in order to ensure that each department, division, and branch has a "fair" share of raises, but all employees within these divisions will have to take turns at getting them. National Security Compensation Comparability. I am concerned about the interpretation of "while providing flexibility to accommodate changes in the function of the organization, changes in the mix of employees performing those functions...." If this results in a reduction in job security, I am concerned that it could result in our best employees leaving civil service for private sector jobs. Adjusting Rate Ranges and Local Market Supplements: "DoD will [FR, Page 7560] determine the rate range adjustments and local market supplements considering mission requirements, labor market conditions, availability of funds, pay adjustments received by employees in other Federal agencies, allowances and differentials under 5 U.S.C. chapter 59, and other relevant factors.... DoD may determine local market areas as well as the timing of these pay adjustments.". This looks like it will be a very labor-intensive procedure that is subject to several possible sources of bias. I submit that such adjustments should be made at least annually, since employees who are at the tops of their respective pay bands are unlikely to remain in civil service very long at fixed incomes while the effects of inflation and increasing taxes and healthcare costs both reduce their net income in dollars and the value of those remaining dollars. Performance-Based Pay "The NSPS pay system will be a performance-based pay system that will result in a distribution of pay raises and bonuses based upon individual performance, individual contribution, organizational performance, team performance, or a combination of those elements." While this sounds quite proper, but I am concerned that it cannot be fairly implemented and may be abused in practice. It bases pay on subjective perceptions of performance. I expect that such perceptions will be biased in favor of employees with whose work evaluators are most familiar thereby encouraging employees to devote more effort to advertising [the high value of] their work to supervisors and other managers, trying to take credit for others' contributions, and other darker aspects of office politics. Rating Methodology: "The criteria used to determine the number of shares to assign an employee may include assessment of the employee's contribution to the mission, the employee's type and level of work, consideration of specific achievements, or other job-related significant accomplishments or contributions." While this sounds very good on the surface, every one of these criteria presents an opening for the injection of subjective bias. Two employees whose performance overall is of equal value might be rated very differently due to the subjective valuations of their contributions, type and level of work, specific achievements, or other accomplishments or contributions. Also, employees have different opportunities to contribute. How much such opportunities would security guards or travel-claim clerks have? Would the contributions of an employee who performs emergency CPR or a Heimlich maneuver for another employee be rewarded differently then one who had no such opportunity? Would the reward, if any, be different depending on whether the victim ultimately lived or died? Should the physician who treats simple cases involving patients who make full recoveries be rewarded more than the physician who works on the hard cases and half of his patients die or survive with permanent impairments? Should the engineer who pursues "pie-in-the-sky" utopian visions that approach but produces a useable product be rewarded more or less than engineers who produce working products that solve simple problems? Should employees who make slow progress on complex problems be rewarded more or less than others who produce tangible results on simple problems? Will an employee who is distributed among several projects, to which he can contribute little to any one, be at a disadvantage when compared to an employee who is assigned to only one project to which he can make a meaningful contribution? Will the employee who handles classified information (at risk to his career in the event of spills) be rewarded differently from employees who do not handle classified information and therefore never have any such accidents? How should union representatives or ombudsmen be rated or compensated? Tying reward to performance turns the rating system into a game of "lifeboat," in which we try to identify the most and least valuable employees and quantify a pecking order in between. I am concerned that this will generate competition between employees who should be working together. Aggressive employees will probably attempt to claim credit for or belittle the importance of others' work. In extreme cases, immature employees may sabotage the work of others in order to suppress their productivity while at the same time making themselves look more productive (and valuable) by comparison.2 I am concerned that such competition will only create discontent and hard feelings and depress the morale of employees who should be working together. In extreme cases, it could conceivably provoke violence in the workplace. Anyone who has ever held command of an organization must surely recognize the importance of employee morale. While the concept of pay for performance may be more "fair", I don't see how it can be realistically and fairly applied, and I am concerned that in practice it will be less fair and have a detrimental effect on morale. If we must do pay-for-performance, then perhaps the best and fairest way to evaluate employees may by through a transparent open system of peer review/evaluation. Peers are probably more qualified to evaluate their values relative to one another on a team. Should the most valuable employee get a pay increase every year and the least valuable employee never get a pay increase when all are contributing? Performance Pay Pools: "The pay pool manager is the individual charged with the overall responsibility for rating determinations and distribution of the payout funds in a given pay pool. " I think it would be better to set ratings first, without regard to payout, and then prorate payout to the ratings, or shares. Performance Payout: "Increases to basic pay may not cause the basic pay of an employee to exceed the maximum of his or her pay band." This defines a salary dead end. Will employees in such situations be faced with a choice between abandoning their chosen profession (which presumably, they do well, if they have reached this ceiling) and quitting DoD service? If so, we could lose some of our most valuable employees at this point. "In such situations, the amount of the payout that exceeds the maximum of the pay band will be paid in the form of a bonus." This is satisfactory if the bonus is recurring or, if it is a one-time bonus, if it is equal to the anuitized present value of the pay increase that it replaces. If it is simply a one-time bonus equal to the cumulative value of the pay increase for a limited period (e.g., 1 year's worth), while any bonus will be accepted, it will not be appreciated as much as the actual pay raise or a bonus of equivalent present value. Financially unsophisticated employees may not recognize this distinction and may welcome the one-time 1-year's-worth bonus all at once without consideration for that the value of a smaller increase in pay might be, but I expect that professional employees will not be so easily deceived. DoD salaries which do not keep up with private-sector salaries, regardless of their position in pay bands, encourage employees to seek employment elsewhere. [FR, Page 7561] Promotion: "Promotion pay increases (from a lower band to a higher band in the same cluster or to a higher band in a different cluster) generally will be a fixed percent of the employee's rate of basic pay or the amount necessary to reach the minimum rate of the higher band, whichever is greater." It is not clear what is meant by "fixed percent." Premium Pay. Changes in premium pay may be helpful. Where I work, Management has been known to insist that employees take leave in order to avoid working past 6:00 pm in order to avoid what management perceives as a requirement that they pay premium pay -- even if the employee does not request it. However, I believe that some premium pay is still in order for overtime, work on Holidays, and work on days which are not part of the normal work schedule. [FR, Page 7562] Performance and Behavior Accountability. This section makes me wonder what sort of appraisal Monica Lewinsky might have gotten under such a system. Tying pay to performance appraisals grants much power to immediate supervisors and provides a strong incentive for employees to behave in ways which they expect will curry favor from their supervisors. Supervisors in turn will be targets of such seductions, whether or not they are sexual. It is obvious that behavior is important to a productive work environment, but by explicitly articulating this relationship, I am concerned that this section will encourage behaviors that will threaten both employees and supervisors. Sexual harassment of subordinates by supervisors will carry even more weight, since now, supervisors will have immediate power to grant/deny pay raises to subordinates who are receptive/nonreceptive to their advances or demands. Supervisors will become more targeted by seductions from persons such as Ms. Lewinsky who want and demand rewards in return. Under the old system, a supervisor had many ways of granting preferential treatment, but they did not include as great of control over pay. Under NSPS, they will, so the potential rewards of behavioral harassment will be even greater. I am concerned that this will set the stage for some nasty and embarrassing charges and denials, such as we examined in the Clarence Thomas confirmation hearings, in which the two persons involved will be the only ones who really know what really happened or didn't happen. I expect that careers will be ruined over such cases. Behavioral harassment need not be sexual. For example, it could be religious or political. If a supervisor is perceived to grant more favorable reviews (and subsequent pay raises) to an employee with whom he shares the same religious or political connection, it will foster resentment on the part of others and a hostile work environment whether or not the perceived favor is real. This already happens under the current system when supervisors are perceived to give preferential treatment to their personal friends. The resentment will be greater when such perceived favoritism includes pay raises. Contrary to the positive behaviors which I am sure the writers of this section hoped to encourage, and I expect that it will encourage positive behaviors, I am concerned that this explicit emphasis on behaviors and tying them to performance appraisals, which in turn are tied to pay, may seed resentment, hostility, and possibly violence, in the workplace. In self-defense against possible behavioral harassment, or charges thereof, all supervisors will need to be wary of having any private consultation with any employee, whether regardless of sex. This is unfortunate, since privacy is sometimes necessary to get to the roots of problems before they can be resolved. An employee is less likely to confess personal problems to a supervisor if he must do so in the presence or within earshot of others who have no obligation of confidentiality. Good employees whose performance suffers due to temporary personal problems should be granted more slack than employees who are simply being derelict, but supervisors are less likely to know who is struggling through a divorce or other personal problem, if there is reason for anyone to fear private consultations. You may recall the religious prayer/Bible-study sessions that our recent attorney general, John Ashcroft, led in his Government workplace with his subordinates. While participation may not have been officially required, I expect that many, if not all attendees felt it was in the best interests of their careers to participate. It has even been reported that Mr. Ashcroft led them in singing religious songs which he had written. In order to thwart such abuses of power, subordinates must have some practical avenue through which to report and seek resolution of such problems and through which they will not fear retribution from the superior who is criticized. Who in their right mind would criticize the actions of a supervisor who holds sole authority over ones salary increases, decreases, or perhaps even termination? Simply reassigning an employee to work under a different supervisor (in a different job) is not satisfactory. An employees should not have to quit his job in order to seek or obtain relief from a managerial abuses. Did anyone serving under John Ashcroft complain? Who should they have complained to? Can anyone argue that these activities were not improper? What actions were taken to stop them? Sources of actual or perceived bias need not be religious or political. They could take the form of fishing or golfing with the boss, or participating in his bowling or other sports league. Such group activities can be good to build cohesion and a spirit of camaraderie among employees. However, they should not be led by a Management official, as this suggests coercion. I see no safeguards against supervisors giving favorable treatment to their friends. "By the same token, supervisors and managers will be held accountable for clearly and effectively communicating expectations and providing timely feedback regarding behavior and performance." How will supervisors and managers be held accountable to do this, and by whom? "These proposed regulations lay the foundation for a performance management system that is fair, credible, and transparent, and that holds employees, supervisors, and managers accountable for results." In an ideal world, this might be so, but we don't live in an ideal world. We can be certain, though, that these changes will result in more arguments and hard feelings over performance appraisals and the setting of performance expectations. Setting and Communicating Performance Expectations: "Performance expectations will be communicated to the employee prior to holding the employee accountable and promptly adjusted as changes occur." Editing performance expectations as changes occur, may add significantly to the administrative burden of operating this system. In the current arrangement, no such editing is normally required during the evaluation period. Under the proposed system, extensive research and planning may be required in order to write the expectations, and then again to rewrite them every time something unexpected happens. When we add to this the potential burdens of arguing over them every time they are modified (or whether modifications are warranted), we could see a significant amount of time consumed by maintenance of these performance expectations. [FR, Page 7563] Performance Rating Challenges. "the regulations permit employees to request timely reconsideration of their ratings of record." Permission to seek reconsideration is meaningless without a corresponding right to review and due process. The review process, if it is to be meaningful, must be substantive and not simply a "rubber stamp" confirmation of the original rating. Appointing Authorities. "In addition, DoD and OPM may establish excepted appointing authorities for positions that are not in the competitive service without specific notice in the Federal Register." This could become abused as a license for DoD and OPM to appoint authorities to appoint their friends. It is my understanding that much of 5 USC was implemented to curtail the "spoils" system of staffing, in which civil service positions were filled by appointment from the current Presidential administration. This is potentially very in efficient since it implies a turnover of civil-service employees with each new President. When this happens, we lose corporate memory when incumbent employees are dismissed, and we incur a training burden for new employees. Both of these effects hurt the organization. Furthermore, DoD should not be a politically-oriented body. I am concerned that as NSPS replaces 5 USC, we will see a reversion to many of the problems which 5 USC was enacted to solve. Time-limited Appointing Authorities." the Secretary (in coordination with OPM) with the authority to prescribe the duration of such appointments, advertising requirements, examining procedures, and the appropriate uses of time-limited employees. The Secretary may also establish procedures under which a time-limited employee who competed for and is serving in a competitive service position may be converted without further competition to the career service" Will the Secretary have authority to prescribe a duration which extends beyond the Secretary's tenure in office? If so, I am concerned that we could see term specifications used to "stack the deck" of key DoD positions with long-lasting political appointees (such as we have seen in recent years with federal judges). The whole concept of time-limited appointments raises concern that DoD civil service under NSPS will evolve toward a system of all temporary employees. This may help the employer by relieving managers of the burden coordinating employees and schedules between multiple projects, and it may save on the expense of providing employee benefits; however, with temporary employees, we lose corporate memory (who knows how a system works years later when there is a problem and the employee has long since moved on elsewhere?); we acquire a new burden of interviewing and selecting employees (who are really unknowns until you can actually see how and whether they perform or not); and I expect that it will also be unpopular with employees if they have to evaluate, select, or change healthcare providers or move more often while at the same time trying to raise a family or maintain some stability in their personal lives. This could exacerbate our current national healthcare problems. It may also erode the cohesion of communities and families as people have to move more often in order to stay employed. While the employer may claim "that's not my problem," I submit that these considerations are important and that it is not family-friendly for the Government to stimulate such problems. What makes one department or process run more smoothly or efficiently often causes more problems elsewhere. [FR, Page 7564] Workforce Shaping--Subpart F "Finally, the proposed regulations give greater emphasis to performance in RIF retention by placing performance ahead of length of service." Performance is certainly important, but I am concerned that if length of service is devalued in RIF considerations, that job security will suffer in DoD. It is widely recognized that civil service jobs do not pay as much as private-sector jobs. One reason that many employees work for civil service is greater job security. If job security is reduced, then there will be less incentive to work in civil service. I am concerned that this will have an adverse impact on recruiting and retaining the best possible employees. If employees cannot rely on the security of their jobs with an employer, we cannot expect job loyalty (as opposed to national loyalty or patriotism) to play a roll when such employees consider jobs with other employers. Adverse Actions--Subpart G 2. Mandatory Removal Offenses "This subpart permits the Secretary to identify offenses that have a direct and [FR, Page 7565] substantial adverse impact on the Department's national security mission. These offenses would carry a mandatory penalty of removal from Federal service.... only the Secretary may mitigate the penalty for committing a mandatory removal offense (MRO)." We need some limitations as to what offenses can be so specified by the Secretary. Interpretation of words such as "direct and substantial" can be very subjective. Would the Secretary be permitted to specify disagreement with any of his or the President's policies or agenda to constitute such an offense? Might any criticism, such as are included in these comments, be declarable as an MRO? Could disagreeable political or other protected First-Amendment activity outside the workplace be declared to be an MRO? What about off-duty Religious activity?3 On-duty political or religious activities? I am concerned that the MRO list could degenerate into a list of the Secretary's pet peeves. With no check or balance or restriction on his MRO authority, there is nothing to stop this from happening and thereby grant the Secretary authority to arbitrarily or capriciously fire any DoD employee by adding some action of such an employee to his MRO list. Adverse Action Procedures "This subpart retains an employee's right to representation and a written decision but provides shorter advance notice periods and reply periods than are currently required for appealable adverse actions. Employees are entitled to a minimum of 15 days advance notice and a minimum of 10 days to reply, which run concurrently. However, if there is a reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the Department will provide a minimum 5 days advance notice and opportunity to reply, which will run concurrently." These notice and reply periods are far too short. In most cases they are probably too short to even identify the required procedures and/or find and retain competent counsel. If such clocks start while the employee is in a travel status, on leave, or over a holiday period, they might well expire before the employee learns of the matter or is able to respond. "[R]easonable cause to believe the employee has committed" also needs further definition. Does this mean that an employee could be fired for simply being charged with a crime? Employees should also have more than a right to reply in such situations. It is pointless to reply if the reply is not to be considered or will have no effect on the removal action. Employees should have a right to due process in such matters. These short notices appear to be an attempt to curtail due process, and as such, appear to be inconsistent with section 9902(h)(B)(i) of Public Law 108-136, which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." Appeals--Subpart H I do not understand why suspensions of 14 days or less should not be appealable. This appears to be an attempt to arbitrarily curtail an employee's right to due process, and as such may be inconsistent with section 9902(h)(B)(i) of Public Law 108-136, which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." "In addition, they provide for an internal DoD review process of initial decisions issued by MSPB administrative judges." Is DoD to have authority to overrule the decisions issued by MSPB administrative judges? I am concerned that DoD will have a conflict of interest when it comes to fairly reviewing an employee's appeal concerning a DoD action. The decision authority for any final appeal should be outside DoD. Granting DoD the authority to overrule judges' rulings also smacks of contempt, and as such, suggests a departure from the rule of law. I don't understand how any reasonable person could consider any system for resolving a dispute to be fair when one party gets to overrule the decision if it doesn't like the outcome. This appears to be in violation of section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment...." [FR, Page 7566] "the proposal to retain MSPB administrative judges" is chilling, not because administrative law judges should be retained, but rather that the question of whether or not they should be retained even came up or was a subject of discussion. Of course they should be retained. That the idea of not retaining them was even discussed suggests a deliberate attempt to curtail employees' rights to due process. This appears to be inconsistent with section 9902(h)(B)(i) of Public Law 108-136, which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." Appeals to MSPB "These regulations retain MSPB administrative judges as the initial adjudicators of employee appeals of adverse actions." The adjudicators of final appeals should also be judges. 2. Department Review of Initial MSPB Administrative Judge Decisions "This subpart authorizes the Department to review initial decisions of MSPB administrative judges (AJ). The authority provides that DoD may reconsider and affirm, remand, modify, or reverse an initial MSPB AJ decision for which a request for review (RFR) has been filed by either party concurrently with the full MSPB and the Department. DoD will promulgate implementing issuances that establish procedures for the submission of an RFR and review of an initial decision." If the Department may unilaterally reverse the initial decisions of MSPB administrative judges, then this begs the question: what is the purpose of the initial MSPB procedure? Indeed, it seems pointless if its verdict may be so easily modified or overturned. When will DoD "promulgate implementing issuances that establish procedures for the submission of an RFR and review of an initial decision"? Without the details of such procedure, it is impossible to evaluate its suitability or adequacy. "The Department's review authority includes: . . . . . . "Remanding an initial MSPB AJ decision to the assigned AJ for further adjudication where the Department believes that there has been a material error of fact, or that there is new evidence material to the case. "Modifying or reversing an initial MSPB AJ decision or an MSPB AJ decision on remand where the Department determines that (1) the decision has a direct and substantial adverse impact on the Department's national security mission, (2) the decision is based on an erroneous interpretation of law, this subpart, or Governmentwide rule or regulation,..." Is it not the responsibility of MSPB to determine the facts on which it bases its rulings? Will employees have the right to new hearings if they disagree with an MSPB ruling or new evidence becomes available? Are the MSPB and its judges not also recognized authorities in the interpretation of law, rules, and regulations? Will employees have the authority or right to modify, reverse, or remand MSPB decisions where they believe there has been "a material error of fact", when there is "new evidence material to the case", or if they determine that the decision has no "a direct and substantial adverse impact on the Department's national security mission", or that "the decision is based on an erroneous interpretation of law, this subpart, or Governmentwide rule or regulation"? I suspect not. It is not fair to grant one party to a dispute but not the other such powers to reverse, modify, or remand decisions that it doesn't like. This is clearly an attempt to bias the appeal process against the employee and hardly seems appropriate in a "land of the free" where there is supposed to be "justice for all." I don't understand how any reasonable person could consider any system for resolving a dispute to be fair when one party gets to overrule the decision if it doesn't like the outcome. This appears to be in violation of section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment...." "... the full MSPB may order corrective action as it considers appropriate only if MSPB determines that the final Department decision was: (a) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (b) obtained without procedures required by law, rule, or regulation having been followed; or (c) unsupported by substantial evidence." If DoD has full authority to modify, remand, or reverse rulings up until this point, then it appears under this rule that without the cooperation of the Department, an employee will not be able to successfully appeal an adverse action unless he can demonstrate that the Department's final decision was "(a) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (b) obtained without procedures required by law, rule, or regulation having been followed; or (c) unsupported by substantial evidence." Without such an argument, but this rule, the full MSPB would have no authority to order corrective action. "Although these standards are appropriate for judicial review, we believe they are too high for an administrative review of adverse actions. That is, such standards would significantly weaken the opportunity to correct an erroneous MSPB AJ decision, whether the employee or the Department petitions the correction. These regulations provide that the Department may review an initial MSPB AJ decision, and correct such decision as appropriate by applying a standard that provides for meaningful corrective action and preserves statutory requirements of fairness and due process." I agree that the standards are too restrictive; however, that would be less of a problem if it weren't for the Department's power to arbitrarily modify, remand, or reverse the initial decision. I do not understand how granting the Department authority to "correct" an initial MSPB AJ decision and not granting the same authority to the affected employee(s) preserves any requirement or standard of "fairness and due process". On the contrary, allowing one party to modify, remand, or reverse a decision make a mockery of any concept of fairness or due process. I don't understand how any reasonable person could consider any system for resolving a dispute to be fair when one party gets to overrule the decision if it doesn't like the outcome. This appears to be inconsistent with section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment....", and section 9902(h)(B)(i), which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." "The Department needs the authority to review initial MSPB AJ decisions to ensure that MSPB interprets NSPS and these regulations in a way that recognizes the critical mission of the Department; and to ensure that MSPB gives proper deference to such interpretation." I do not understand why MSPB cannot be charged with the responsibility of interpreting the regulations (Isn't that their function in such matters?). In any judicial hearing, it is the responsibility of each party to present his case including how he things regulations should be interpreted and why, and "the critical mission of the Department" when that is relevant. If loses because he did not adequately present and argue such matters, then that should not be grounds for overturning the decision. Indeed, the Department's resources for making a good presentation of its case tower over those which the average employee can afford to bring to bear. The Department already holds a distinct advantage in attorney power. Presumably, attorneys representing the Department will also be experienced in such matters and be authorized official time to prepare cases. We can reasonably expect that this is not the case for the appealing employee, who will usually not be an attorney, probably has little or no experience in this area of law, may have considerable difficulty finding and affording competent counsel, and probably will not be authorized official time to prepare his case (or funding to pay his attorney(s)). "The Department needs the authority to review initial MSPB AJ decisions ... and to ensure that MSPB gives proper deference to such interpretation" seems to be saying that the Department needs this authority in order to make sure that the matter is decided in favor of the Department. What could possibly be a greater mockery of any judicial procedure? This can hardly be construed as fair or due process. If the process is to be so unfair, then why even have it at all? It would make almost as much sense to completely ban all appeals of adverse actions (and save a lot of time and money as well). I don't understand how any reasonable person could consider this to be a fair system. This appears to be in violation of section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment....", and section 9902(h)(B)(i), which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." 3. Appeals of Mandatory Removal Offenses "An employee will be able to appeal a removal action to MSPB based on an MRO in substantially the same manner he or she will be able to appeal an adverse action, including removal, based on a non-MRO." We need more detail here. What does "substantially" mean? How are the appeal processes different? [FR Page 7567] 4. MSPB Appellate Procedure Improvements "The modifications being made to current MSPB requirements will further the mission of DoD without impairing fair treatment and due process protections." This particular sentence sounds good by itself, but other content, both before and after this point suggest a deliberate attempt to impair fair treatment or due process protections (See further comments below and above under Subpart H). I don't understand how any reasonable person could consider this to be a fair system. This appears to be inconsistent with section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment....", and section 9902(h)(B)(i), which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." "When some or all material facts are not in genuine dispute, the AJ may limit the scope of the hearing, or issue a decision without a hearing." A hearing is still needed in order to argue interpretation of the facts and applicable laws or regulations (or their applicability). For example, if an employee is required to enter timekeeping data by a specific day of each week, predicting what he will do for the days of the week that remain in the future on that time-entry day, and he predicts wrongly, and there is no dispute of the requirement of the entry deadline, and there is no dispute that the data entered did not accurately reflect the work actually done after all the days of the week had passed, then is the employee guilty of timecard fraud and not entitled to a hearing? Surely there should be some consideration given to different employees' differing abilities to accurately predict their future work activities. "The appeal filing deadline, including the deadline for class appeals, is decreased from 30 days to 20 days." I don't understand the rationale for advancing the filing deadline. 20 days is not adequate to identify procedures or competent representation. It will also not be adequate time in which to obtain results of any Freedom Of Information Act (FOIA) requests which may bear on the matter. Indeed, 30 days is often not adequate for such activities. I cannot understand what significant benefit is to be derived from reducing the filing deadline from 30 days to 20 days unless it might be to curtail fairness or the employee's right to due process by increasing the chance that he will either miss the deadline or the filing will contain more flaws which jeopardize his chances of success. This appears to be inconsistent with section 9902(h)(B)(i) of Public Law 108-136, which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." "The administrative judge's initial decision must be made no later than 90 days after the date on which the appeal is filed. "If the full MSPB reviews a final Department decision, either through an employee's petition for review or OPM intervention, the full MSPB must render its final decision no later than 90 days after the close of record. If OPM seeks reconsideration of a final MSPB decision or order, MSPB must render its decision no later than 60 days after receipt of the opposition to OPM's petition in support of such reconsideration." What happens to the case if one of these deadlines is missed? Is the case dropped? Is the appeal affirmed by default? Must it be refiled? "Currently, the parties to an appeal may submit unilateral requests for additional time to pursue discovery or settlement. The ability of the parties to unilaterally submit a request for case suspension is eliminated." I cannot understand the rationale for this change unless it is a deliberate effort to restrict fairness and rights to due process. This appears to be inconsistent with , and section 9902(h)(B)(i) of Public Law 108-136, which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." "Discovery can also be limited through such a motion if the burden or expense of providing a response outweighs its benefit." Benefit to whom? Who determines the balance between the burden or expense of providing a response and its benefit? "When engaging in discovery, either party can submit only one set of interrogatories, requests for production, and requests for admissions. The number of interrogatories or requests for production or admissions may not exceed 25 per pleading, including subparts, and neither party may conduct/compel more than 2 depositions." I do not understand the rationale or justification for these restrictions unless it is to curtail an employee's right to due process. Oftentimes, the answer to one question will prompt another relevant question. By this rule, it appears that such follow-up questions will be barred (thereby encouraging elusive answers). This appears to be inconsistent with section 9902(h)(B)(i) of Public Law 108-136, which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." "An administrative judge may not grant interim relief or grant a stay of an action taken against an employee. Only the full MSPB may order interim relief or stay an adverse action following the final Department decision regarding the adverse action." I find myself wondering: What is the purpose of the initial MSPB hearing? It appears so far that it has no authority. "...these regulations authorize OPM to intervene in such situations [MSPB proceedings] regardless of whether the law, rule or regulation is one that falls under OPM jurisdiction." I don't understand what is meant by "intervene." While it would seem acceptable for OPM to file briefs with MSPB of its position on various matters, I do not see how it could be appropriate for OPM to interfere with such a proceeding or attempt to dictate its outcome. 7. Penalty Review "These regulations preclude mitigation of the penalty selected by DoD except where, after granting deference to the Department, a determination is made that the penalty [FR Page 7568] is so disproportionate to the basis for the action as to be wholly without justification.... With this new, substantially more limited standard for MSPB mitigation of penalties selected by DoD, the intent is to explicitly restrict the authority of MSPB to modify those penalties to situations where there is simply no justification for the penalty. MSPB may not modify the penalty imposed by the Department unless such penalty is so disproportionate to the basis for the action as to be wholly without justification." I am concerned about the interpretation of "wholly without justification." This seems to suggest that no penalty selected by the Department may be mitigated as long as it can be demonstrated that there is some justification for some penalty, and the explanation that follows seems to confirm this. This in turn seems to invite creative, cruel, and unusual penalties for minor offenses as long as the Department can adequately show that some offense occurred. For example, if it can be proven that an employee is 5 minutes late returning from lunch on a single occasion, and a penalty of termination or xx days' suspension is imposed, if there is no dispute that the offense occurred, this section suggests that there is no mechanism for the mitigation of this clearly excessive penalty. In such a case, justice appears to rely solely on the discretion and integrity of the employees chain of command. Hopefully, such a harsh penalty would not be imposed for such a trivial offense, but if/when it is imposed, this section appears to be designed explicitly to block a successful appeal. Would the employee would have to prove that the offense did not occur in order to obtain any relief? Managers are already salivating over this one as evidenced by Internet discussion on or before 24 February: "To begin with the proposed changes seem to be eye candy.... But lots of changes are yummy. For example, the choice of penalty can be disturbed only if the penalty is 'so disproportionate to the basis for the action as to be wholly without justification." Before it is implemented, this provision already appears ripe for abuse. I don't understand how this can be construed as fair to anyone, and it appears to be designed explicitly to block due process in this regard. I don't understand how any reasonable person could consider this to be a fair system. This appears to be in violation of sections 9902(h)(A) and (B)(i) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment....", and must "ensure that employees in the National Security Personnel System are afforded the protections of due process," respectively. The proscription against mitigation of penalties is also inflexible, in apparent violation of section 9902(b)(1) of Public Law 108-136, which requires that "Any system established under subsection (a) shall-- (1) be flexible." 8. Attorney Fees "[T]he proposed regulations provide that a prevailing appellant may recover attorney fees if the Department's action was clearly without merit based upon facts known to management when the action was taken." This encourages Management to begin actions before they have all the facts in order to avoid being charged attorneys' fees in the event that they lose. Labor-Management Relations--Subpart I 1. Purpose "These regulations modify the provisions of 5 U.S.C. 7101 through 7135..." Doesn't the authority to author and modify laws reside only with Congress subject to approval by the President? While they may author regulations, I do not understand how the Secretary or OPM can constitutionally author or modify laws. "These regulations .... implement the requirements of 5 U.S.C. 9902 by ensuring the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them, subject to the provisions of chapter 99 and any exclusion from coverage or limitation on negotiability established pursuant to law, rule, DoD issuance and any other legal authority, including the authority granted to DoD and OPM to promulgate these regulations." It is good that "the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them" is preserved, but the exclusions, particular that of negotiability established pursuant to "DoD issuance" is a giant loophole. What limitations might apply to such issuances? [FR Page 7569] "... consultation, under the proposed regulations, as well as under chapter 71, does not require that the parties reach an agreement" Then what does it mean? If there is no requirement to reach an agreement, then what is the purpose of "consultation"? 4. Impact on Existing Agreements "In order to ensure consistent application of DoD issuances, as well as this part and its implementing issuances, provisions of collective bargaining agreements that conflict with this part and/or such issuances are unenforceable as of the effective date of this part or such issuances." This appears to give DoD the power to nullify any provision that it doesn't like in any collective bargaining agreement by simply issuing an "issuance." As such, it would eviscerate the contractual meaning of a collective bargaining agreement. In section 1, we discussed the right of employees to organize and bargain collectively, but this section suggests that any agreements thus reached will be unenforceable and therefore meaningless. I therefore now wonder what was really meant in section 1 by "the right of employees to organize, [and] bargain collectively...." In light of this section (4), the wording in section 1 appears to be deceptive. Now, I also wonder what other subterfuge is afoot. Without trust, collective bargaining will not work well--if it works at all. "If the union believes that management has inappropriately found contract provisions unenforceable, it may appeal such decisions to the National Security Labor Relations Board." It is my understanding from section 6, below that the NSLRB is composed of members who are appointed by the Secretary. If this is correct, then I am concerned that they will be biased toward the Department in any dispute arising between it and labor organizations. Even if it is not biased in actuality, this method of appointment will create a presumption of bias, and this casts doubt on the value of appealing matters to this it. The term "kangaroo court" comes to mind. 6. National Security Labor Relations Board "The Department will create a National Security Labor Relations Board (NSLRB) composed of at least three members appointed to fixed terms. The Secretary will appoint the members, with one member appointed from a list developed in consultation with the Director of OPM. Members will be independent, distinguished citizens known for their integrity, impartiality and expertise in labor relations and/or the DoD mission, and/or relevant national security matters. The NSLRB must interpret the regulations in subpart I and related decisions and policies in a way that recognizes the critical mission of the Department and the need for flexibility." That "Members will be independent, distinguished citizens known for their integrity, impartiality and expertise in labor relations and/or the DoD mission, and/or relevant national security matters" certainly sounds good, but it is difficult to believe that the Secretary would appoint members who are not biased in favor of his particular agenda. Indeed, one might presume, and many might claim that the President appoints only "independent, distinguished citizens known for their integrity, impartiality" to the Federal judiciary, but many also perceive and contend otherwise. It is also not clear what the terms of these appointments are to be other than that those of at least three members will be "fixed." Will the Secretary be able to "stack the deck" of the NSLRB with members to serve terms extending beyond that of the Secretary himself? I am further concerned about the sentence: "The NSLRB must interpret the regulations in subpart I and related decisions and policies in a way that recognizes the critical mission of the Department and the need for flexibility." Is this an attempt to dictate how cases will be decided before they are heard? I am still concerned "flexibility" is really a codeword for authority on the part of the Secretary to do whatever he wants (and many sections discussed thus far seem to confirm this interpretation). Indeed, the sections covered thus far seem to grant the Secretary unlimited authority with the force of law within DoD. If this is the intent, then there needs to be some check or balance on this power, and I don't think that check or balance can be effectively achieved by a Board which is composed solely of members who are appointed by the Secretary. That would be absurd. "The NSLRB's decisions are subject to limited review by the Authority...." Which Authority is referenced here? "Thus, the NSLRB will issue decisions on unfair labor practices, to include scope of bargaining, duty to bargain in good faith, and information requests; certain arbitration exceptions; negotiation impasses; and questions regarding national consultation rights." There seems to be a glaring conflict of interest on the part of a Board that is appointed by the Secretary ruling matters to which DoD, if not the Secretary himself, must certainly be a party. This resembles the travesty of one party to a dispute getting to appoint the judge(s) and jury who will decide it. As such, it bears no semblance of a fair mechanism. Who will take it seriously? Again, the term "kangaroo court" comes to mind. One advantage of such an arrangement may be that fewer matters will be appealed to such a Board, but this is countered by the serious disadvantage that there will be less "justice for all," if indeed, there is justice for any. I don't think having a Board appointed by the Secretary to decide disputes in which the DoD is a party is a just system or one of which any intelligent person could be proud to call a mechanism of justice. I don't understand how any reasonable person could consider this to be a fair system. This appears to be in violation of section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment...." To have any semblance of justice, disputes between anyone and DoD must be decided by a 3rd party which has no real or apparent allegiance to either party to the dispute. "Both the NSLRB and FLRA must interpret the regulations in subpart I in a way that promotes the swift, flexible and effective, day-to-day accomplishment of the Department's mission as defined by the Secretary." This appears to be another attempt to dictate how the NSLRB will decide cases before they are heard. [FR Page 7570] 7. Management Rights "To carry out its national security mission, the Department must have the authority to take actions quickly when circumstances demand; it must be able to develop and rapidly deploy resources to confront threats in an ever-changing national security environment; and it must be able to act without unnecessary delay." This rapid deployment sounds more like requirements that active-duty military personnel signup for. Active-duty military personnel receive many tax-free allowances and other benefits that civilians do not receive. If civilian employees are to be expected to respond as quickly, then they too should receive similar pay and benefits. In recent years, the President has advocated lower pay raises for civilian versus military personnel. If civilians are to be as deployable as military, then such distinctions must be eliminated. One reason people accept the lower pay scales of government employment (compared to private-sector) is the stability of the government jobs. If this stability is to be eliminated, then we must have comparable pay. Otherwise, I expect many of our best employees will leave government service to seek private-sector employment. They may continue working on DoD projects, but such indirect services will come at much greater expense through contractors than if they were employed directly by the Government. 9. Determination of Appropriate Units for Labor Organization Representation "... the proposed regulations exclude additional categories of employees from coverage.... Employees engaged in all types of personnel work are also excluded from the unit. This is a change from the current law, which allows employees engaged in personnel work of a purely clerical capacity to be included in a bargaining unit." This change will hurt clerical workers who frequently require union assistance with perceived discrimination in the workplace. Clerical workers, who are among the lowest-paid employees, likewise include many of those who are most vulnerable to racial, sexual, or other forms of harassment. These employees will be adversely affected if they cannot turn to their unions for advice and help -- especially if union personnel are forbidden to charge official time to the representation of employees outside their bargaining unit (section 11, below). If they are to be excluded from bargaining-unit coverage, then some appropriate arrangement needs to be made to protect them from these workplace abuses. "By including these individuals in bargaining units, a conflict of interest exists such that management officials risk compromising confidential management information when seeking or accepting guidance from personnelists within the personnel office." I don't understand how coverage in a bargaining unit threatens the compromise of confidential information. Surely, employees who work with such information have an obligation to safeguard its confidentiality, are aware of that obligation, and receive periodic training to reinforce that awareness. To suggest that coverage in a bargaining unit would compromise that obligation or cause an employee to violate his obligation of confidentiality is to presume a corruption on the part of the employee. We already have background investigations to help us select honest employees and disciplinary, administrative, and criminal procedures for dealing with employees who violate that trust. If Management does not trust an employee with confidential management information, then the best procedure to avoid a leak of that information through that employee is to not share it with him. I do not see the nexus to the employee's coverage in a bargaining unit. The argument rings hollow and suggests an attempt to suppress participation in collective bargaining (currently an unfair labor practice). "Further, inclusion of clerical personnelists in the bargaining unit prohibits the personnel officer from using his or her full staff in areas that are vital to the efficient accomplishment of the mission." I don't understand how this is so. "Finally, this section removes attorney positions from bargaining unit coverage. Supervisors and managers must be assured that communications with attorneys are confidential and unbiased." It is my understanding that attorneys that are employed by the agency represent the agency and not members of Management. They are obligated to report any violations of Title 18 USC that come to their attention. Therefore, there can be no assurance of complete confidentiality between any person and any such attorney. These attorneys represent the agency and not any person, whether employee or management. Is this not correct? [FR Page 7571] 11. Representation Rights and Duties "...'Weingarten' right, which permits union representation at the employee's request when management examines an employee during an investigation and the employee reasonably believes that discipline will follow. However, the proposed regulations exclude investigations conducted by the Offices of the Inspectors General and other independent Department or Component investigatory organizations, such as U.S. Army Criminal Investigation Command and the Air Force Office of Special Investigations; 'Weingarten' representation rights do not apply in such investigations." Why not? To deny an employee representation when he is the subject of such an investigation suggests a deliberate attempt to violate rights which might not otherwise be violated if he had representation. "These exclusions were identified to ensure that independent bodies can conduct truly independent investigations. Further, this change ensures that investigations involving criminal matters are not affected by unnecessary delay, harm to the integrity of the investigation, or issues of confidentiality." They also suggest an attempt to abuse or violate an employee's rights to due process. As such, they may be in violation of section 9902(h)(B)(i) of Public Law 108-136, which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." "Under chapter 71, a union has the right to information maintained by the agency if the information is necessary and relevant to the union's representational responsibilities. This right is maintained with some modifications in these regulations. Under these regulations, disclosure of information is not required if adequate alternative means exist for obtaining the requested information, or if proper discussion, understanding, or negotiation of a particular subject within the scope of collective bargaining is possible without recourse to the information. This change also relieves management of the unnecessary administrative burden of producing information that can readily be obtained some other way and recognizes technological advances in information access and sharing. The proposed regulations further provide that information may not be disclosed if an authorized official determines that disclosure would compromise the Department's mission, security, or employee safety." This change provides Management with a tool to obstruct or disadvantage an opponent by refusing to provide relevant information. The terms "adequate," "proper," "scope," "unnecessary," and "readily," as used in this context are all highly elastic and will, no doubt, become the subjects of considerable debate if this rule is implemented. 12. Unfair Labor Practices "Management's unfair labor practices (ULPs) remain almost identical to those contained in chapter 71. One major difference is the elimination of 7116(a)(7), which provided that it is a ULP to enforce a rule or regulation, which is in conflict with a collective bargaining agreement if the agreement was in effect prior to the issuance of the rule or regulation. Such action is no longer a ULP because the proposed regulations provide that law, Governmentwide rules and regulations, [FR Page 7572] Presidential issuances, and DoD issuances will supersede current collective bargaining agreements where the terms conflict." This change could potentially nullify the enforceability of any part of any collective bargaining agreement and begs the question: What will be the meaning of collective bargaining agreements under NSPS? If the answer is that they will have no meaning, then how does this square with "ensuring the right of employees to organize, bargain collectively..." (section 1)? 13. Duty To Bargain and Consult "[M]anagement has no obligation to bargain over changes to conditions of employment unless the change is foreseeable, substantial, and significant in terms of both impact and duration on the bargaining unit, or on those employees in that part of the bargaining unit affected by the change." I expect that there will be much debate over the meanings of "foreseeable," "substantial," and "significant." "Typically, where a change in conditions of employment is of duration shorter than the bargaining process associated with that change, or where it affects a minimal number of employees, there is no bargaining obligation associated with that change." This may prompt Management to unnecessarily drag out negotiations so that more changes are "of duration shorter than the bargaining process [that might be] associated with that change" "Mid-term bargaining over proposed changes in conditions of employment must be completed within 30 days or management will be able to implement the change after notifying the union." 30 days is insufficient time when parties are not agreeable. This provision will motivate Management to drag out negotiations longer than 30 days so that it don't have to negotiate the matter anymore. 15. Collective Bargaining Above the Level of Recognition Negotiation at a level above the level of recognition makes sense if all or most of the units subordinate to the level at which the negotiation takes place are similarly situated with similar interests; however, I am concerned that raising the level of negotiation could result in a matter being negotiated by persons who are not adequately informed or have little interest in the concerns of the subordinate unit(s) which will be bound by the ultimate agreement. 16. Grievance Procedures "DoD and OPM propose to modify 5 U.S.C. 7121(a)(1)" Do DoD or OPM have authority to modify laws? [FR Page 7574] E.O. 12988, Civil Justice Reform "This proposed regulation is consistent with the requirements of E.O. 12988. The regulation clearly specifies the effects on existing Federal law or regulation; provides clear legal standards; has no retroactive effects; specifies procedures for administrative and court actions; defines key terms; and is drafted clearly." In many places, the discussion incorporates as-yet unspecified DoD "issuances." Since the content of these issuances is not yet known, it is impossible to have a complete understanding of the current and potential ramifications of this proposed regulation. Indeed, such future issuances could have profound impacts on the effect of this proposed regulation. [FR Page 7575] Sec. 9901.102 Eligibility and coverage. "(b) At his or her sole and exclusive discretion, the Secretary may, subject to Sec. 9901.105(b)-- "(1) Establish the effective date for applying subpart I of this part to all eligible employees in accordance with 5 U.S.C. 9902(m)" Does this mean that until the Secretary establishes such effective date for subpart I, the rules and procedures for Labor-Management relations continue in effect? [FR Page 7576] "(e) At his or her sole and exclusive discretion, the Secretary may rescind the application under paragraph (b) of this section of one or more subparts of this part to a particular category of employees and prescribe implementing issuances for converting that category of employees to coverage under applicable title 5 or other applicable provisions." Does this mean that after all this effort to develop, review, and comment on this proposed regulation, something completely different could be applied to some or all DoD employees? Sec. 9901.103 Definitions. "Day means a calendar day." Many of the proposed time limits are too short to adequately protect rights to due process. If "day" is defined to mean a calendar day, then this further aggravates the inadequacies of those time limits. Such short time limits encroach on employees' rights to due process, and as such, may be in violation of section 9902(h)(B)(i) of Public Law 108-136, which specifies that appellate procedures must "ensure that employees in the National Security Personnel System are afforded the protections of due process." "Mandatory removal offense (MRO) means an offense that the Secretary determines in his or her sole, exclusive, and unreviewable discretion has a direct and substantial adverse impact on the Department's national security mission." The list of MROs should be subject to review. As stated, this appears to grant the Secretary authority to fire any employee for any reason--even one that is arbitrary, capricious, or irrelevant to the mission of DoD, such as supporting the "wrong" religion, of failure to support the "correct" religion4, having the wrong ethnicity, national origin, race, creed, or for simply disagreeing with him on any matter. Might any criticism, such as are included in these comments, be eligible, if determined by the Secretary, to be MRO? As stated, the fact that an offense does not have "has a direct and substantial adverse impact on the Department's national security mission" is irrelevant. As stated, what is relevant is the Secretary's "sole, exclusive, and unreviewable discretion." "Performance means accomplishment of work assignments or responsibilities and contribution to achieving organizational goals, including an employee's behavior and professional demeanor (actions, attitude, and manner of performance), as demonstrated by his or her approach to completing work assignments." If this is interpreted to include a willingness to work excessive amounts of overtime, whether paid, or unpaid, it will have an adverse effect on families and community involvement as well as morale within the workplace. [FR Page 7577] Sec. 9901.104 Scope of authority. "The provisions in the following chapters of title 5, U.S. Code, and any related regulations, may be waived or modified in exercising the authority in 5 U.S.C. 9902: ...." It is my understanding that under the US Constitution only Congress, subject to the approval of the President has the authority to enact laws. This section appears to grant legislative power to the persons authoring this regulation. [FR Page 7578] Sec. 9901.106 Continuing collaboration. "(a) Continuing collaboration with employee representatives. (1) In accordance with 5 U.S.C. 9902, this section provides employee representatives with an opportunity to participate in the development of Department-level implementing issuances that carry out the provisions of this part. This process is not subject to the requirements established by subpart I of this part...." If this process is "not subject to the requirements established by subpart I of this part," then this begs the questions: How is an employee representative notified that an issuance is to be developed? What must an employee representative do in order to be included as a participant? What activities may such participation include? As described in this section, "continuing collaboration" appears to be only an advisory role. Some provision is needed for appropriate arrangements to accommodate employees that are adversely affected by the issuances. Sec. 9901.107 Relationship to other provisions. "(2) This part must be interpreted in a way that recognizes the critical national security mission of the Department. Each provision of this part must be construed to promote the swift, flexible, effective day-to-day accomplishment of this mission, as defined by the Secretary. The interpretation of the regulations in this part by DoD and OPM must be accorded great deference." I am concerned that this will be construed to mandate summary (unfair) resolutions to disputed matters. It also appears to attempt to dictate to the courts how they shall interpret. This appears to be inconsistent with section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment...." Sec. 9901.108 Program evaluation. "(b) Involvement in the evaluation process does not waive the rights of any party under applicable law or regulations." Does this mean that Management's right to assign work is permitted to be exercised in such a way so as to interfere with a representative's ability to perform such evaluations or so as to otherwise obstruct such evaluation? Subpart B--Classification [FR Page 7579] Sec. 9901.204 Definitions. "Classification, also referred to as job evaluation, means the process of analyzing and assigning a job or position to an occupational series, career group, pay schedule, and pay band for pay and other related purposes." "Job evaluation" may be confused with performance evaluation. It may be better to use a different word here, since the word evaluation is so widely used to refer to performance evaluations. [FR Page 7580] Subpart C--Pay and Pay Administration I am concerned that pay may be used as a tool to shape the workforce, i.e., instead of firing an employee, fail to raise his pay, or cut his pay, until he quits; instead of conducting a RIF procedure, set the pay schedules for the career groups and localities you want to trim so as to encourage these employees to quit. This would not be an honorable way to fire employees or to conduct RIFs. In order to defend themselves against such practices, employees would have to spend a significant amount of their time keeping abreast of job opportunities elsewhere. As employees become aware of higher salaries elsewhere, I expect we could also expect a corresponding decline in employee retention. Whether or not employees do this, I am concerned, if pay is used for these purposes, that it will generate resentment and depress morale in the workforce. Anyone who has ever led any group must surely be aware of the importance of morale if one is to have a productive and reliable workforce. Reliability is especially important when it concerns our national security. Perhaps the easiest way in practice to share rewards--and one that will generate the least discontent--will be to share them equally or to take turns at getting the high ratings as limited by some quota system. However, there will always be some valuable employees who will threaten to quit if they don't get a raise every year, and there will be other equally valuable employees who are less motivated to seek work elsewhere, who are happy where they are, or who enjoy the security a familiar work environment, or who limited prospects or or otherwise disadvantaged at seeking work elsewhere due to non-merit factors such as race, appearance, physical deformity or disability, age, etc. . I am concerned that a manager with limited funding to grant raises will grant a disproportionate share of raises to the agressive employees whom they wish to retain and fear losing at the expense of other equally valuable contented employees whom they are confident of not losing anyway. This will not be fair, and it raises questions such as: Will DoD employees have to constantly pursue job opportunities elsewhere and threaten to quit in order to get adequate raises in pay? Sec. 9901.304 Definitions. "Pay pool means the organizational elements/units or other categories of employees that are combined for the purpose of determining performance payouts. Each employee is in only one pay pool at a time." How are these "organizational elements/units or other categories of employees" to be divided? -- by career group? Command-wide? department wide? division wide? Will the groups be small enough so that pay pool managers will know and be familiar with the work and performance of all members of their respective pools? Will members of different career groups be included in the same pay pool? (Could secretaries have to compete with engineers within a common pool?) Will pools be allowed to include their own pay pool managers? (This would present an obvious conflict of interest, since the pay pool manager could allocate a disproportionate amount of the pay to himself before rewarding others.) [FR Page 7581] Sec. 9901.313 National security compensation comparability. "(a) To the maximum extent practicable, for fiscal years 2004 through 2008, the overall amount allocated for compensation of the DoD civilian employees who are included in the NSPS may not be less than the amount that would have been allocated for compensation of such employees .... "(b) To the maximum extent practicable, DoD implementing issuances for the NSPS will provide a formula for calculating the overall amount to be allocated for fiscal years beyond fiscal year 2008 for compensation of the civilian employees included in the NSPS. The formula will ensure that in the aggregate employees are not disadvantaged in terms of the overall amount of pay available as a result of conversion to the NSPS, ...." What is special about fiscal year 2008? How will the formula change beyond fiscal year 2008 (and why)? What is the formula beyond 2008 to be? What will these DoD issuances say? Will Congress be obligated to appropriate this money? What happens if Congress appropriates less (or more) money for DoD salaries than the amount that is required to pay the salaries that are set by DoD for its employees? (Who will be in control of Defense appropriations? Does "the overall amount allocated for compensation of the DoD civilian employees who are included in the NSPS" and "aggregate employees" mean on a per-pay-pool basis, DoD-wide basis, or something in between (what)? If it is not on a per-pay-pool basis, then I am concerned about transference of pay from some groups of employees to others based on this formula, even though the DoD-wide aggregate compensation remains equivalent. Is it possible or permitted under this arrangement for those persons who are involved in designing these formulas to design them in such a way that they (formula-design pay pools, their friends, friend groups, or any other lucky group) advance more rapidly in compensation while other groups advance less rapidly (while keeping the DoD-wide aggregate equivalent to what it would have been had it not converted to NSPS)? If so, then I am concerned that this could become the source of discontent, could depress morale, and could harm retention and recruiting rates in the disadvantaged groups. On the other hand, if local markets saw accelerated compensation growth for certain career group(s), such as we saw for information-technology workers around the year 2000, would such formula likewise accelerate compensation growth for NSPS workers in that same group(s) at the expense of other groups or employees? Setting and Adjusting Rate Ranges Sec. 9901.321 Structure. "(a) DoD may establish ranges of basic pay for pay bands, with minimum and maximum rates set and adjusted as provided in Sec. 9901.322. "(b) For each pay band within a career group, DoD will establish a common rate range that applies in all locations." This appears to be a needless duplication of the effort that is currently used to set rate ranges the various GS series. How are DoD employees different? Sec. 9901.322 Setting and adjusting rate ranges. "(a) Within its sole and exclusive discretion, DoD may, subject to Sec. 9901.105(d)(2), set and adjust the rate ranges established under Sec. 9901.321." Pay rate ranges should be adjusted at least annually. Far too many times, the pay of federal employees has suffered in favor of non-related issues, such as balancing the federal budget, or supporting a war. If DoD pay rate ranges get behind those for similar jobs outside DoD or in the private-sector, it will harder for them to catch up (that it would have been to maintain competitive levels all along), and will encourage top performers to seek employment elsewhere, thereby depressing the aggregate quality of the DoD employees remaining in the adversely affected career groups. For DoD to have different pay scales from the rest of the federal government will place DoD in competition with non-DoD components for the best employees. I don't understand why DoD should be able to set and adjust rates better for DoD employees than OPM or whomever sets GS and special-rate schedules now. This proposed Rule greatly complicates pay structures by having different schedules for each career group with different local market supplements for each locality and career group. Even without these additional complexities, to have DoD set its own unique pay schedules for jobs that are essentially the same as similar jobs outside DoD seems to be a needless duplication of effort. Furthermore, if the DoD jobs do not pay the same as similar jobs outside DoD, we could see mass migrations of federal employees into and out of DoD in pursuit of the preferred pay schedules. I expect the magnitudes of these migrations to be greater than between federal and private-sector employment because employees would still be federal employees and retain benefits that came with federal employment. Sec. 9901.323 Eligibility for pay increase associated with a rate range adjustment. "(c) For employees who do not have a current rating of record, DoD will determine the amount of any pay increase associated with a rate range adjustment in accordance with implementing issuances." What factors will be considered, and how will they be used to determine these pay increases? [FR Page 7582] Sec. 9901.332 Local market supplements. "(a) For each band rate range, DoD may establish local market supplements that apply in specified local market areas." Doesn't OPM already track prevailing local market pay scales? Will DoD be duplicating work that has already been done by OPM? "(c) Local market supplements are considered basic pay for only the following purposes: ...." What are some examples of purposes for which local market supplements are not considered basic pay, and why are these purposes excluded? Can local market supplements ever be negative? For example, presumably the normal pay schedules will be considerably higher than local market rates in localities in such places as China, India, and Afghanistan. It is conceivable that a negative supplement could bring the normal schedules more in line with local rates. On the other hand, the normal schedules could be set very low so that local supplements would be positive anywhere in the world. The distinction between how much of pay is from the pay schedule and how much is from local supplement is important because these different parts of pay are affected differently by different rules. Without having some idea how pay will be distributed between pay schedules and local supplement, it is difficult to evaluate the rest of the proposed Rule concerning pay. Sec. 9901.333 Setting and adjusting local market supplements. "(a) Within its sole and exclusive discretion, DoD may, subject to Sec. 9901.105(d)(3), set and adjust local market supplements." (same comments as for sections 321 and 322, above.) Sec. 9901.334 Eligibility for pay increase associated with a supplement adjustment. "(c) For employees who do not have a current rating of record, DoD will determine the amount of any pay increase under this section in accordance with implementing issuances." What criteria and procedures will be specified in these implementing issuances? Performance-Based Pay Sec. 9901.341 General. "Sections 9901.342 through 9901.345 describe the performance-based pay that is part of the pay system established under this subpart. These provisions are designed to provide DoD with the flexibility to allocate available funds to employees based on individual, team, or organizational performance as a means of fostering a high-performance culture that supports mission accomplishment." While this may sound reasonable on the surface, I am concerned that in practice it will lead to: * competition between employees who should be cooperating with one another. For example, if one employee consults another -- particularly one in the same pay pool -- with a work-related problem, it will be in the interest of the consulted employee to give only an answer and not show the requester how to find answers for himself. This preserves the consulted employee's status as a local guru. Moreover, it is not in the guru's interest to even provide an answer, as doing so, will help the requester to be more productive and thereby to get more shares from the pay pool at the expense of the gurus and others. It will be in nobody's interest to help or share knowledge with any of their peers in any way. * aggressive competitors may attempt to claim credit for the work of others, or inappropriately denigrate or sabotage others' work. * additional bickering over performance ratings * real or perceived inappropriate bias on the parts of those who award performance ratings leading to an increased number of complaints of such bias/discrimination. * work time redirected by employees from productive work to "office politics" in attempts to ingratiate themselves with supervisors and others in hopes of enhancing their chances for receiving favorable ratings, etc. * attrition of employees who do excellent work but lag behind others at competing or ingratiating themselves with the appropriate manager * discontent on the part of employees who feel cheated * Since most employees probably feel that they should be getting paid more than they currently are, and there is no additional aggregate money (this is often referred to as "zero sum gain"), while some may get raises, most probably will not except for general increases in pay band schedules or local market supplements. I expect that this will lead to general disappointment due to unrewarded expectations, and a general decrease in morale, or possibly just cynical perceptions of NSPS as another mechanism for abusing federal employees. Certainly, if everybody is an outstanding performer, and there is no additional aggregate money for pay, we can't all get raises, and those who do get raises get them at the expense of other employee(s) who do not and/or other(s) who may get reductions in pay. In practice, I foresee a system of quotas of raise money divided between organizational subunits (pay pools), and turn-taking within each unit to receive raises. (As has been perceived to be the case in the past with the higher ratings that may have impacted bonuses but did not impact pay.) * It is not unheard of for some members of Management to actually interfere with productivity by repeatedly assigning the same employee first to one project and then to another or to multiple projects at the same time such that he cannot be significantly productive on any of them. How is such an employee's performance to be evaluaated? * Management imposes several administrative burdens on employees which consume time that might otherwise be devoted to more productive activities (e.g., TQM, TQL, DAWIA, routine but unproductive meetings). Under the current system, these were of little or no consequence since everyone is paid similarly regardless of productivity. However, under NSPS, in which there is supposed to be a direct relation between productivity and reward, I expect that many requirements that interfere with productivity may come to be resented and thereby have a negative effect on morale. * How will union officials be evaluated and paid under NSPS, particularly if they are devoted full-time to respresentation duties? If they are rewarded based on the speed with which they come into agreement with Management on negotiated issues, then this creates obvious conflicts of interest on the parts of Management and all negotiators, and it makes a mockery of the negotiation process and would seem to be in violation of the requirements of section 9902.(b)(4) of Public Law 108-136, which requires that the NSPS "ensure that employees may organize, bargain collectively, ...." Sec. 9901.342 Performance payouts. "(a)....(2).... Unless otherwise provided in implementing issuances, if an employee is not eligible to have a rating of record for the current rating cycle for reasons other than those identified in paragraphs (f) and (g), such employee will not be eligible for a pay increase or bonus payment under this part." I can understand not granting an employee a bonus for a period when he was not present, but if his lack of a rating of record for the current rating cycle is due to absence (e.g., family leave, sabbatical, employee exchange program, etc.), then I do not understand why his most recent rating cannot be used so that he receives at least the market rate for what he was doing when he returns. An absent employee's pay rate should at least be updated as pay schedules and local supplements are adjusted so that when he returns, he will not be disadvantaged for the time he was away. Will new parents have to return to work from family or maternity leave in order to get new ratings of record in order to enjoy increments in pay schedules or local supplements? "(b) Performance pay pools. (1) DoD will issue implementing issuances for the establishment and management of pay pools for performance payouts." What will these issuances say? Will pay pool managers be included in the pay pools that they manage? Will pay pools contain a mix of employees who rate performance and those who do not? This would present a glaring conflict of interest: What safeguard would prevent evaluators or pay pool managers from awarding disproportionate shares of available salary money to themselves? "(c) Performance shares. (1) DoD will issue implementing issuances regarding the assignment of a number or range of shares for each rating of record level, subject to paragraph (c)(2) of this section. Performance shares will be used to determine performance pay increases and/or bonuses." What will these issuances say? If this system is being designed based on systems that have been observed to already work, then surely there must be some ideas as to the details of all these undefined "issuance"s. Each such detail which is omitted presents a loophole for potential abuse. "(d) Performance payout. (1) DoD will establish a methodology that authorized officials will use to determine the value of a performance share. A performance share may be expressed as a percentage of an employee's rate of basic pay (exclusive of local market supplements under Sec. 9901.332) or as a fixed dollar amount, or both." What will this methodology be? Will it be fair? How can I be sure without knowing what it is? This methodology and the other issuances concerning the setting of pay are critical to making this system work. If employees do not believe they are being paid or treated fairly, they will leave DoD service. I am concerned that this could present a problem for recruiting and retaining top performers, and could thereby threaten our national security. [FR Page 7583] Sections 9901.342(f) and (g) are very similar. I can see that they cover two different categories of absence, but the treatment of pay upon returning from these absences appears to be identical. What is the difference between them, and why? Why is this same formula not used for establishing pay upon return following all types of absences? "(f) Adjustments for employees returning after performing honorable service in the uniformed services..... DoD will credit the employee with increases under Sec. 9901.323 and increases to basic pay under this section based on the employee's last DoD rating of record or the average percentage basic pay increases granted to employees in the same pay pool, pay schedule, and pay band who received the modal rating, whichever is most advantageous to the employee. For employees who have no such rating of record, DoD will use the modal rating received by other employees in the same pay pool, pay schedule, and pay band during the most recent rating cycle." What will be done when there is more than one modal rating for the employee's pay pool, pay schedule, and pay band? Might the median rating be more appropriate (and less ambiguous)? Sec. 9901.352 Setting pay upon reassignment. "(b) Subject to the adverse action procedures set forth in subpart G of this part and implementing issuances, DoD may reduce an employee's rate of basic pay .... at any time." I am concerned that this power could be abused by managers with poor interpersonal skills. Sec. 9901.353 Setting pay upon promotion. "Subject to DoD implementing issuances, DoD may set pay anywhere within the assigned pay band when an employee is promoted to a position in a higher pay band." While I am certain that employees who receive big increases in pay upon promotion will appreciate this provision, I am also concerned that it could hurt morale if it is not perceived as being applied fairly. Unlike the private sector, the salaries and bonuses paid to public employees are a matter of public record. There is no way to keep any employee's pay secret from anyone who bothers to look it up. Sec. 9901.354 Setting pay upon reduction in band. "(a) Subject to paragraph (b) of this section, DoD may set pay anywhere within the assigned pay band when an employee is reduced in band, either voluntarily or involuntarily." I expect that any reduction in pay will hurt the morale and attitude of any employee receiving the reduction. It will also likely have a chilling effect on the morale of others if they perceive the pay cut as being unfair. I do not advocate paying good money for bad work, but such reductions must be carefully considered and clearly justified to all concerned parties. Employee morale is important in any organization. "(b) Subject to the adverse action procedures set forth in subpart G of this part, DoD may assign an employee involuntarily to a position in a lower pay band for unacceptable performance and/or conduct, and may simultaneously reduce the employee's rate of basic pay. A reduction in basic pay under this section may not cause an employee's rate of basic pay to fall below the minimum rate of the employee's new pay band, or be more than 10 percent" 10% of what? "(c) If an employee is reduced in band involuntarily, but not through adverse action procedures (e.g., termination of a temporary promotion or failure to successfully complete a supervisory probationary period), DoD will limit any reduction in pay in accordance with implementing issuances." This distinguishes a category of pay reduction but tells us nothing about how the reduction will be calculated (other than that it will be done by DoD). More detail is needed here. Sec. 9901.355 Pay retention. [FR Page 7584] "(b) .... A retained rate will be compared to the range of rates of basic pay applicable to the employee's position." What does this mean? Sec. 9901.356 Miscellaneous. "(e) Subject to DoD implementing issuances, DoD may set the rate of basic pay of an employee upon the expiration of a temporary reassignment or promotion, and any resulting reduction in basic pay is not considered an adverse action under subpart G of this part." This appears to be a loophole by which DoD may reduce an employee's pay without it qualifying as an adverse action. Does this mean that the reduction will also not be appealable? Subpart D--Performance Management [FR Page 7585] Sec. 9901.406 Setting and communicating performance expectations. "(c) Performance expectations for supervisors and managers will include assessment and measurement of how well supervisors and managers plan, monitor, develop, correct, and assess subordinate employees' performance." What does this mean? Will a supervisor be penalized if his assessments disagree with those of higher management? "(d) Performance expectations may take the form of-- "(1) Goals or objectives that set general or specific performance targets at the individual, team, and/or organizational level; ...." How will it be determined whether targets are reasonable? What will protect an employee from being sanctioned for failure to realize unreasonable targets? (Nothing is impossible to the man who doesn't have to do it.) [FR Page 7586] Sec. 9901.409 Rating and rewarding performance. "(b) A rating of record will be used as a basis for-- "(1) A pay determination under any applicable pay rules; "(2) Determining reduction-in-force retention standing; and "(3) Such other action that DoD considers appropriate, as specified in DoD implementing issuances." This may sound good, but in practice, I expect that it will lead to a lot of disappointments and arguments over ratings. Also, if a veteran of 20 years of service is RIF'ed in favor of retention of a new employee(s), I expect that it will have a negative impact on any corporate loyalty. If an employee cannot rely on his employer for the security of his job, then why should the employee not leave to accept work elsewhere whenever he can find a higher-paying position? Many civil servants accept the lower pay of government jobs in favor of greater job security. If this greater job security goes away, and is not replaced with something else, pay levels will have to be adjusted to be more competitive with private-sector employment. What might the "other action"s include that will be specified in implementing issuances? Are only the most recent ratings to be considered for RIF standing and these other actions, or will there be some mechanism for considering older ratings for these purposes? What mechanism will block a supervisor from writing ratings that are biased in favor of his friends? "(d) An appropriate rating official will communicate the rating of record and number of shares to the employee prior to payout." Will it be clear from this communication how an employee is doing in comparison to his peers? If not, then how will an employee be able to learn this? Anyone who has performed active-duty military service must surely be aware that probably over 90% of military fitness reports rate their subjects in the top 10% of Navy personnel. In reality, only 10% should be in the top 10%. However, it is recognized, that the practice of assigning inflated ratings is widespread and if a serviceman was not rated in the top 1%, 5%, or (perish the thought) 10%, he would never be able to get promoted. Lower ratings would surely toll the death knell to a serviceman's promotability and future military career. In civil service, it may be claimed that such rating inflation is not practiced, but statistics indicate otherwise. Again, if everyone receives top ratings, how can one tell where he stands in the event of a RIF (or other rating-dependent) action? "(g) A rating of record may be challenged by an employee only through a reconsideration procedure as provided in DoD implementing issuances. This procedure will be the sole and exclusive method for all employees to challenge a rating of record." What is the procedure that will be specified by the implementing issuances? Does this mean that until such issuances are written there is no procedure for challenging a rating and that it therefore may not be challenged? Suppose a supervisor is not cognizant of relevant facts when writing a rating. Will there be a mechanism for incorporating that relevant matter and upgrading such a rating (how)? "A payout determination will not be subject to reconsideration procedures." What does this mean? If a rating is successfully challenged, will the payout be redetermined in accordance with the corrected rating or not? Subpart E--Staffing and Employment Who will the appointing authorities be? I am concerned that filling positions by appointment could politicize service within DoD and that we could see significant turnover in DoD personnel with each new Secretary. If this happens, it could have an adverse effect on corporate memory and employee loyalty to the organization. Noncompetitive conversion of non-competitive appointees to competitive positions could result in further political bias within the organization. [FR Page 7588] Sec. 9901.603 Definitions. "Retention factors means performance, veterans' preference, tenure of employment, length of service, and such other factors as the Secretary considers necessary and appropriate to rank employees within a particular retention list." What might such other factors include? Clearly, the list must be limited and not be allowed to include any factor which any Secretary might deem to be "necessary and appropriate." Sec. 9901.604 Coverage. "(a) Employees covered. The following employees and positions in DoD organizational and functional units are eligible for coverage under this subpart: "(1) Employees and positions who would otherwise be covered by 5 U.S.C. chapter 35 (excluding members of the Senior Executive Service ...." Why are SES employees excluded from coverage under this subpart? [FR Page 7589] Sec. 9901.607 Retention standing. "(a) Retention list. Within each competitive group, the Department will establish a retention list of competing employees in descending order based on the following: "(1) Tenure, ... "(2) Veterans' preference, ... "(3) The rating of record, ... "(4) Creditable civilian and/or uniformed service...." All of these factors seem relevant, but it is not clear how they will be combined to determine the sequence of employees on a retention list. Sec. 9901.608 Displacement, release, and position offers. "(a) Displacement to other positions on the retention list. (1) An employee who is displaced because of position abolishment, or because of displacement resulting from the abolishment of the position of a higher-standing employee on the retention list, may displace a lower-standing employee on the list if-- "(i) The higher-standing employee is qualified for the position, consistent with 5 CFR 351.702; and "(ii) No undue interruption would result from the displacement." What does "No undue interruption" mean? Clearly, the displaced employee's work would be interrupted. Sec. 9901.609 Reduction in force notices. "The Department will provide a specific written notice to each employee reached for an action in reduction in force competition at least 60 days before the reduction in force becomes effective. DoD will prescribe the content of the notice in implementing issuances." 180 days would be more appropriate (in order to give the employee time to seek employment elsewhere). Content of the notice should include a description of options available to the employee (e.g., appeals, placement programs, etc.) and procedures for pursuing those options or references where those procedures can be found. [FR Page 7590] Subpart G--Adverse Actions Sec. 9901.702 Waivers. "With respect to any category of employees covered by this subpart, subchapters I and II of 5 U.S.C. chapter 75, in addition to those provisions of 5 U.S.C. chapter 43 specified in subpart D of this part, are waived and replaced by this subpart." What is the basis of authority for the authors of this regulation to waive or replace existing law? Sec. 9901.703 Definitions. "Adverse action means a removal, suspension, furlough for 30 days or less, reduction in pay, or reduction in pay band (or comparable reduction)." What term is used to indicate a removal, suspension or furlough for more than 30 days? "Indefinite suspension means the placement of an employee in a temporary status without duties and pay pending investigation, inquiry, or further Department action. An indefinite suspension continues for an indeterminate period of time and ends with the occurrence of pending conditions set forth in notice of actions which may include the completion of any subsequent administrative action." What determines the "completion of any subsequent administrative action"? What control does the suspended employee have over this process? (Will his reinstatement depend on the cooperation of a clerk(s) or other personnel who have no interest in the matter?) "Pay means .... For the purpose of this subpart, pay does not include locality-based comparability payments under 5 U.S.C. 5304, local market supplements under subpart C of this part, or other similar payments." Because different parts of pay are treated differently, it is necessary to know how pay is partitioned in order to adequately evaluate the new pay system. Sec. 9901.704 Coverage. "(b) Actions excluded. This subpart does not cover-- .... "(12) Reduction of an employee's rate of basic pay from a rate that is contrary to law or regulation;" Does this mean that when an employee or prospective employee is offered a position at a specified rate of pay, and the employee or prospective employee accepts that position in good faith, relying upon the integrity of the offer, and it is later discovered that the offered rate of pay is contrary to law or regulation, the employee's pay can then be reduced, in breech of the offer/acceptance contract, and that this is not considered to be an adverse action? What remedy or avenue of redress is available to such an employee? [FR Page 7591] Sec. 9901.712 Mandatory removal offenses. "(a) The Secretary has the sole, exclusive, and unreviewable discretion to identify offenses that have a direct and substantial adverse impact on the Department's national security mission.... "(c) The Secretary has the sole, exclusive, and unreviewable discretion to mitigate the removal penalty on his or her own initiative or at the request of the employee in question." Who determines what constitutes "direct and substantial adverse impact on the Department's national security mission."? Could support of an organization such as the American Civil Liberties Union (ACLU), or engaging in various private off-duty behaviors regarded by the Secretary to be immoral, be considered to have a "direct and substantial adverse impact on the Department's national security mission", especially in light of statements from such luminaries as Jerry Falwell and Pat Robertson who connected the ACLU and a general "decline in morality" to the 9/11 terrorist attacks by motivating God to lift His "curtain of protection" shielding the United States. Even President George W. Bush has made statement's professing belief in such a Curtain. The Biblical destruction of the cities Sodom and Gomorah are similarly connected to perceived immoral behaviors. Could refusal to pray, as has been encouraged numerous times by President Bush, or to take religious oaths, or simply disagreeing with the Secretary on any matter be designated as MROs? The Secretary's discretion should be reviewable. For it to be unreviewable leaves no recourse against arbitrary and capricious MRO designations. Even if the current Secretary is a paragon of wisdom and integrity, there can be no assurance that the same will be true of future Secretaries. The unreviewable nature of the Secretary's MRO list and its corresponding removal penalty is also inflexible, in apparent violation of section 9902(b)(1) of Public Law 108-136, which requires that "Any system established under subsection (a) shall-- (1) be flexible." Sec. 9901.714 Proposal notice, Sec. 9901.715 Opportunity to reply, and Sec. 9901.807 Appellate procedures. The advance notice and response times (15 days, 5 days, 10 days, 20 days) are too short, especially if days are defined as calendar days (sec. 9901.103). These limits do not allow sufficient time to identify required procedures or counsel with expertise or who is even familiar with the unique procedures under NSPS. To set such short time limits infringes on the right to due process, and as such, may be in violation of section 9902(h)(B)(i) of Public Law 108-136. Each of these time limits should be at least 30 days. If an employee is perceived as a threat, he can be placed on administrative leave until the matter is resolved. Sec. 9901.714 Proposal notice "(b) Contents of notice. .... "(2) .... The notice is not necessary for furlough without pay due to unforeseeable circumstances, such as sudden breakdowns in equipment, acts of God, or sudden emergencies requiring immediate curtailment of activities." I don't understand why employees should suffer loss of pay due to circumstances that are beyond their control. "(c) Duty status during notice period. An employee will remain in a duty status in his or her regular position during the notice period. However, when the Department determines that the employee's continued presence in the workplace during the notice period may pose a threat to the employee or others, result in loss of or damage to Government property, adversely impact the Department's mission, or otherwise jeopardize legitimate Government interests, the Department may elect one or a combination of the following alternatives: "(2) Allow the employee to take leave, or place him or her in an appropriate leave status (annual leave, sick leave, or leave without pay)...." Use of an employee's annual or sick leave should be at the option of the employee. Leave without pay should be imposed only with consent of the employee or if the employee is absent without leave. "[W]hen the Department determines that the employee's continued presence in the workplace during the notice period may pose a threat to the employee or others, result in loss of or damage to Government property, adversely impact the Department's mission, or otherwise jeopardize legitimate Government interests," the Department should put the employee on paid administrative leave until the matter is resolved or the perceived threat is abated. The employer should not have a right to direct that an employee use his personal leave. Sec. 9901.715 Opportunity to reply. "(b) The opportunity to reply orally does not include the right to a formal hearing with examination of witnesses." Why is there no right to examine witnesses? This seems to short-circuit any right to due process, and in so doing, may be in violation of section 9902(h)(B)(i) of Public Law 108-136. "(c) During the opportunity to reply period, the Department will provide the employee a reasonable amount of official time to review the Department's supporting evidence, and to furnish affidavits and other documentary evidence, if the employee is otherwise in an active duty status." How is "reasonable amount of official time" determined, and who makes this determination? Presumably, anyone who is so charged will not have extensive experience in such matters and the procedures for making such replies and will require considerably more time to prepare a reply than might an attorney who specializes in such matters. In addition to the disadvantage of unfamiliarity with the procedural terrain, different persons will have vastly different skills to articulate such replies. "(f) The Department may disallow as an employee's representative--" This hardly seems fair. This appears to be inconsistent with section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment...." Sec. 9901.807 Appellate procedures. [FR Page 7593] "(c) Pursuant to 5 U.S.C. 9902(h)(4), employees will not be granted interim relief, nor will an action taken against an employee be stayed, unless specifically ordered by the full MSPB following final decision by the Department." This seems to say that in order to get relief in any case, it must be appealed to the full MSPB. Is this what is intended? It doesn't seem fair -- particularly if the matter is decided in the employee's favor at a lower level. This appears to be inconsistent with section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment...." "(d)....(2) Neither the MSPB AJ, nor the full MSPB, may reverse the Department action based on the way in which the charge is labeled or the conduct characterized, provided the employee is on notice of the facts sufficient to respond to the factual allegations of the charge." This section appears to permit conviction of employees of offenses different from those of which they are actually charged. Even if "the employee is on notice of the facts sufficient to respond to the factual allegations of the charge," if he is not given notice of the charge for which he is being prosecuted, I don't understand how he can be expected to prepare a proper defense. I am concerned that improper characterizing of a charge may be abused as a tool to trick an employee or his counsel into not adequately addressing the essential matters or details of a charge. This therefore appears to be unfair to the employee and an attempt to curtail his right to due process, in violation of sections 9902(h)(A) and (B)(i) of Public Law 108-136. "(h)(1) Except as provided in paragraph (h)(2) of this section or as otherwise provided by law, the AJ may require payment by the Department of reasonable attorney fees incurred by an employee if the employee is the prevailing party and the AJ determines that payment by the Department is warranted in the interest of justice. For the purpose of this subpart, such fees are warranted in the interest of justice only when the Department engaged in a prohibited personnel practice or the Department's action was clearly without merit based upon facts known to management when the action was taken." This is not fair. It encourages management to take adverse actions, before adequate investigations to determine relevant facts, in order to avoid having to pay attorney(s)' fees in the event that they don't prevail. This appears to be inconsistent with section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment...." "(k)....(3)....(ii) Neither party may submit more than one set of interrogatories, one set of requests for production, and one set of requests for admissions. The number of interrogatories or requests for production or admissions may not exceed 25 per pleading, including subparts; in addition, neither party may conduct/compel more than 2 depositions." Why these limitations? This appears to be an attempt to arbitrarily curtail due process, and as such, may be in violation of section 9902(h)(B)(i) of Public Law 108-136. "(4) Requests for case suspensions must be submitted jointly." Jointly by whom? Both opposing parties? All members of one party? "(5) If the AJ determines upon his or her own initiative or upon request by either party that some or all facts are not in genuine dispute, he or she may, after giving notice to the parties and providing them an opportunity to respond in writing within 15 calendar days, issue an order limiting the scope of the hearing or issue a decision without holding a hearing." This curtails due process by precluding arguments concerning interpretation of the facts and/or extenuating/mitigating circumstances. As such, it appears to be inconsistent with sections 9902(h)(A) and (B)(i) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment....", and "ensure that employees in the National Security Personnel System are afforded the protections of due process," respectively. "(6) The Department's determination regarding the penalty imposed will be given great deference." This appears to be an attempt to dictate how a case will be decided before it is even heard. This hardly seems fair and appears to mock the concept of due process. This appears to be inconsistent with sections 9902(h)(A) and (B)(i) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment....", and "ensure that employees in the National Security Personnel System are afforded the protections of due process," respectively. "An arbitrator, AJ, or the full MSPB may not modify the penalty imposed by the Department [FR Page 7594] unless such penalty is so disproportionate to the basis for the action as to be wholly without justification. In cases of multiple charges, the third party's determination in this regard is based on the justification for the penalty as it relates to the sustained charge(s)." Does this mean that if there is even a shred of justification for the charge(s), the maximum penalty(s) must be imposed? "When a penalty is mitigated, the maximum justifiable penalty must be applied." What does this mean? "The maximum justifiable penalty is the severest penalty that is not so disproportionate to the basis for the action as to be wholly without justification." It looks here like somebody has an ax to grind. Perhaps we should hear the stories that inspired this mandate for maximum justifiable penalties. With or without that inspiration, arbitrarily requiring maximum justifiable penalties is as unfair as would be arbitrarily requiring minimum justifiable penalties. Why is this matter even raised here? This requirement of imposition of maximum justifiable (what does "justifiable" mean?) penalty appears to completely ignore the concept of progressive discipline. For example, consider: (1) a base commander who, knowing that political activity in the workplace is forbidden, holds an official base-wide event at which he encourages or directs everyone to vote in a certain way in an upcoming election, and (2) an employee who privately shares a political cartoon in the workplace with a similarly minded coworker, perhaps aware of the proscription against political activity, but not fully aware of its extent. Must they both be terminated for these offenses? Imposing maximum penalties for infractions which are perceived, even if mistakenly, to be minor, is not in the best interests of DoD, will generate resentment, depress morale, discourage independent thought and innovation, and drive away top performers. I don't believe that such treatment of its imployees is in the best interests of DoD or its mission of national security. This appears to be inconsistent with section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment....", and section 9902(b)(1), which requires that "Any system established under subsection (a) shall-- (1) be flexible." "(8)....(ii).... Any decision issued by the Department after reviewing an initial AJ decision is precedential unless--" I don't understand why all final decisions regarding their respective matters are not precedential. "(A) Where it [the Department] believes that there has been a material error of fact, or that there is new and material evidence available that, despite due diligence, was not available when the record closed, remand the matter to the assigned AJ for further adjudication or issue a final DoD decision modifying or reversing that initial decision or decision after remand. An AJ decision after remand must be made no later than 30 days after the date of receipt of the remand;" If the Department may thus remand, modify, or reverse AJ decisions, then no case can ever be relied upon to be finally closed. If the Department can remand, modify, or reverse any decision it doesn't like, this a mockery of the MSPB/AJ adjudication procedure. "(B) Where the Department determines that the initial AJ decision has a direct and substantial adverse impact on the Department's national security mission, or is based on an erroneous interpretation of law, Governmentwide rule or regulation, or this part, issue a final DoD decision modifying or reversing that initial decision;...." This makes a mockery of the MSPB/AJ adjudication procedure. "(m) .... Before seeking judicial review, the Secretary may seek reconsideration by MSPB of a final MSPB decision." This is not fair unless the same option is available to employees. This appears to be inconsistent with section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment...." Sec. 9901.808 Appeals of mandatory removal actions. "(d) If the MSPB AJ or the full MSPB sustains an employee's appeal based on a finding that the employee did not commit an MRO, the Department is not precluded from subsequently proposing an adverse action (other than an MRO) based in whole or in part on the same or similar evidence." This suggests double jeopardy. How many different adverse actions may the Department "based in whole or in part on the same or similar evidence"? This appears to be a license to harass an employee repeatedly until the Department finally hits on an action that is sustained. This doesn't seem fair to me. This appears to be inconsistent with section 9902(h)(A) of Public Law 108-136, which specifies that if the Secretary establishes an appeals process, it must provide "fair treatment in any appeals that they [DoD employees] bring in decisions relating to their employment...." Subpart I--Labor-Management Relations Sec. 9901.901 Purpose. "These regulations recognize the rights of DoD employees to organize and bargain collectively, subject to any exclusion from coverage or limitation on the scope of bargaining pursuant to law, including this subpart and DoD issuances, applicable Presidential issuances (e.g. Executive orders), and any other legal authority." These rights appear to be very tenuous at best if they can be limited by any "DoD issuances, applicable Presidential issuances (e.g. Executive orders), and any other legal authority." What would prevent DoD from routinely issuing a new issuance to preclude collective bargaining on any issue that arises? Sec. 9901.902 Scope of authority. "When a specified category of employees is covered by the labor- [FR Page 7595] management relations system established under this subpart, the provisions of 5 U.S.C. 7101 through 7135 are modified and replaced by the provisions in this subpart with respect to that category, except as otherwise specified in this subpart. DoD may prescribe implementing issuances to carry out the provisions of this subpart." 5 U.S.C. 7101 through 7135 are important sections dealing with collective bargaining. Sec. 9901.903 Definitions. "Component means an organizational unit so prescribed and designated by the Secretary in his or her sole and exclusive discretion, such as, for example, the Office of the Secretary of Defense; the Military Departments, or the Defense Logistics Agency." It is not clear what this means. Is this an exhaustive list of "component"s? "DoD issuance or issuances means a document issued at the DoD or DoD Component level to carry out a policy or procedure of the Department including those issuances implementing this part." This meaning depends heavily on the meaning of the word "component." It also impacts dozens of details of the implementation of this rule by issuances, including limitation of the scope of bargaining as specified in sec. 901. [FR Page 7596] Sec. 9901.905 Impact on existing agreements. "(b) Upon request by an exclusive representative, the parties will have 60 days after the effective date of coverage under the applicable subpart and/or implementing issuance to bring into conformance those remaining negotiable terms directly affected by the terms rendered unenforceable by the applicable subpart and/or implementing issuance. If the parties fail to reach agreement by that date, they may utilize the negotiation impasse provisions of Sec. 9901.920 to resolve the matter." 60 days is insufficient for significant negotiation when union officials are tasked by Management with other tasks. By assigning such tasks, Management is effectively able to obstruct the bargaining process. Sec. 9901.920 describes resolution of impasse by a Board which in turn is appointed by the Secretary. It hardly seems fair that impasses should be resolved by a board that is appointed by only one of the disputing parties. This appears to be inconsistent with section 9902(m)(6) of Public Law 108-136, which specifies "The labor relations system developed or adjusted under this subsection shall provide for independent third party review of decisions, including defining what decisions are reviewable by the third party, what third party would conduct the review, and the standard or standards for that review." Sec. 9901.907 National Security Labor Relations Board. "(a)(1) The National Security Labor Relations Board is composed of at least three members who are appointed by the Secretary for terms of 3 years, except that the appointments of the initial Board members will be for terms of 1, 2, and 3 years, respectively. The Secretary may extend the term of any member beyond 3 years when necessary to provide for an orderly transition and/or appoint the member for up to two additional 1-year terms. The Secretary, in his or her sole and exclusive discretion, may appoint additional members to the Board; in so doing, he or she will make such appointments to ensure that the Board consists of an odd number of members." "(2) Members of the Board will be independent, distinguished citizens of the United States who are well known for their integrity, impartiality, and expertise in labor relations, and/or the DoD mission and/or other related national security matters, ...." One would hope that I hardly imagine that any Secretary would appoint members to the Board who were not already sympathetic, if not actually biased, toward his policies and agenda. Such a board therefore hardly seems suitable for resolving disputes between DoD and other parties. The terms suggest that a Board member's term could outlast the term of office of the Secretary that appointed him. However, the provision that allows the Secretary to appoint additional members provides a mechanism for any incoming Secretary to appoint new members at any time to overwhelm the votes of existing members whenever he or she does not approve of their decisions. One would hope that persons appointed to the federal judiciary are "well known for their integrity, impartiality, and expertise," and many would contend that they are, and yet many also contend that they are not. In recent decades, I think the vast majority of persons who have been paying attention would agree that judicial appointments have become very politicized. With some judges, there is widespread agreement speculating how they will vote on various cases before the cases are even heard -- and the speculation is usually correct. How can we be assured that the NSLRB will be fair and impartial and not similarly become a political extension of the Secretary(s) that appoint its members? Many organizations are unable to fairly regulate themselves from within and require dispute resolution from independent outside parties. I submit that DoD is not uniquely different in this regard. "(e) Decisions of the Board are final and binding." No Board which is composed solely of members appointed of the Secretary is likely to be perceived as fair or impartial on matters to which the Secretary or DoD is a party. Having a Board appointed by the Secretary to decide appeals by employees and collective-bargaining matters to which the Secretary or DoD is a party is clearly inconsistent with the specifications of section 9902(m)(6) and (h)(A) of Public Law 108-136, which specifies "The labor relations system developed or adjusted under this subsection shall provide for independent third party review...." Members of the Board are appointed by the Secretary for limited terms, and may be reappointed solely at the pleasure of the Secretary, and may be overruled at any time by additional appointments by the Secretary. Such a Board can hardly be regarded as "independent" or a "third party." Sec. 9901.908 Powers and duties of the Board. [FR Page 7597] "(7) ... in no case may the Board issue status quo ante remedies, ... where such an award would ... interfere with the efficiency ... of the Department's mission ...." What is this intended to mean? I am sure that there are many who would contend that it would be most efficient if all complaints were simply summarily dismissed. Is that what the Board is supposed to do? Sec. 9901.909 Powers and duties of the Federal Labor Relations Authority. "(a)...(2) ... (relating to the according of exclusive recognition to labor organizations)" What does this mean? Sec. 9901.910 Management rights. "(a) Subject to paragraphs (b), (c), and (d) of this section, nothing in this subpart may affect the authority of any management official or supervisor of the Department-- "(3) To lay off and retain employees, or to suspend; remove; reduce in pay, pay band, or grade; or take other disciplinary action against such employees or, with respect to filling positions, to make selections for appointments from properly ranked and certified candidates for promotion or from any other appropriate source." Whoever wrote this must have a lot of faith in the integrity of every management official and supervisor of the Department. The powers listed in (3) are very serious, and I believe they are too great to entrust to the sole judgment of every supervisor within the Department. I am concerned that some will grant favored treatment to their friends and abuse their authority in order to get rid of employees they don't like. Such biases could also be in favor or against projects rather than employees. Layoffs, suspensions, firings, and reductions in pay, pay band, or grade are serious measures, and as such, they should be governed by some procedural requirements involving several persons. "(e) When an obligation exists under Sec. 9901.913, management will provide the exclusive representative an opportunity to present its views and recommendations regarding the exercise of an authority under paragraph (a) of this section, and the parties will bargain at the level of recognition ...." What safeguards will protect an exclusive representative's "opportunity to present its views and recommendations" and right or obligation to bargain against interference by management's exercise of rights under section (a)? [FR Page 7598] "(g) Nothing in this section will delay or prevent the Department from exercising its authority. "(h) Nothing in the process established under this section or in Sec. 9901.917, will delay the exercise of a management right under Sec. 9901.910(a)(1), (2) or (3)." Does this nullify any obligation to bargain? All negotiation takes time and thereby imposes some delay. If all delay is prohibited, then this would appear to likewise prohibit bargaining -- in violation of PL 108-136 sec. 9902(b)(4) "(i) Management retains the sole, exclusive, and unreviewable discretion to determine the procedures that it will observe in exercising the authorities set forth in Sec. 9901.910(a)(1) and (2) and to deviate from such procedures, as necessary." This seems to contradict the obligation to bargain. Sec. 9901.912 Determination of appropriate units for labor organization representation. "(3) An employee engaged in personnel work;" How are employees engaged in personnel work to be represented. They are among the lowest-paid federal employees and are therefore most vulnerable to workplace abuses. Sec. 9901.913 National consultation. "(a) If, in connection with the Department or Component, no labor organization has been accorded exclusive recognition on a Department or Component basis, a labor organization that is the exclusive representative of a substantial number of the employees of the Department or Component, as determined in accordance with criteria prescribed by the Board, will be granted national consultation rights by the Department or Component." I am concerned that teams bargaining at a national level will not be cognizant of issues unique to various components at lower levels, and this will lead to inadequate representation. "National consultation rights will terminate when the labor organization no longer meets the criteria prescribed by the Board. Any issue relating to any labor organization's eligibility for or continuation of, national consultation rights will be subject to determination by the Board." So a Board, appointed by the Secretary, may prescribe the termination of national consultation rights (in addition to deciding negotiation impasses)? This hardly seems fair or impartial. How does this square with part (e): "Nothing in this section will be construed to limit the right of the agency or exclusive representative to engage in collective bargaining."? Sec. 9901.914 Representation rights and duties. "(a)....(2) An exclusive representative of an appropriate unit will be given the opportunity to be represented at-- "(i) Any formal discussion .... This right does not apply to meetings between a management official(s) and bargaining unit [FR Page 7599] employees for the purpose of discussing operational matters where any discussion of personnel policies, practices or working conditions-- "(B) Is incidental or otherwise peripheral to the announced purpose of the meeting; ..." Does this mean that Management can escape the obligation to afford the exclusive representative an opportunity to be present if it announces a different purpose for the meeting? "(C) Does not result in an announcement of a change to, or a promise to change, an existing personnel policy(s), practice(s), or working condition(s);" Does this exception authorize Management to exclude the exclusive representatives from discussions with employees of potential changes in working conditions as long as it does not result in an announcement or promise? I am concerned, if the proposed changes are popular with employees, that Management may then tell the employees that despite any popular consensus the changes will have to be delayed until negotiations are completed and thereby build anti-union animus. This is a well-known Management tactic. Of course, the changes would require negotiation; however, the union should be involved in such a matter from the start. Management could also delay implementation of a popular change by dragging out negotiations, and blame it on the union (because without a union, negotiations would not be necessary), thereby building more anti-union animus. A more devious device would be for Management to discuss possible changes what it expects would be very popular but that it has no intention of making (thereby fulfilling the exception that the meeting "not result in an announcement of a change to, or a promise to change"), and then blame the union for it not happening. This is not bad-faith bargaining because it isn't bargaining, but it would discourage support for and participation in a union. "(iii) Any examination of a bargaining unit employee by a representative of the Department in connection with an investigation if the employee reasonably believes that the examination may result in disciplinary action against the employee and the employee requests such representation. Such right will not apply to investigations 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 Defense Criminal Investigative Service, the U.S. Army Criminal Investigation Command, the Naval Criminal Investigative Service, and the Air Force Office of Special Investigations." I believe the right that is being discussed here is commonly referred to as the Weingarten right. Why is the right excepted from the various named categories of investigation? Surely, these are among the most serious of investigations and therefore representation is most warranted; and yet, their exception appears to be an attempt to curtail an employee's right to counsel, justice, and due process, and as such, may be in violation of sections 9902(h)(B)(i) of Public Law 108-136. "(b) The duty of the Department or appropriate Component(s) of the Department and an exclusive representative to negotiate in good faith under paragraph (a) of this section includes the obligation-- "(3) To meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays;" What protection exists to block Management from effecting unnecessary delays by assigning pre-emptive work to union negotiators? "(c) Disclosure of information in paragraph (b)(5) of this section does not include the following: "(2) Disclosure of information if adequate alternative means exist for obtaining the requested information, or if proper discussion, understanding, or negotiation of a particular subject within the scope of collective bargaining is possible without recourse to the information; "(4) Any disclosures where an authorized official has determined that disclosure would compromise the Department's mission, security, or employee safety; and" (2) and (4) are potentially large loopholes through which to block the disclosure of relevant information and thereby thwart negotiation. [FR Page 7600] Sec. 9901.916 Unfair labor practices. "(b) For the purpose of this subpart, it is an unfair labor practice for a labor organization-- "(7)(i) To call, or participate in, a strike, work stoppage, or slowdown, or picketing of the Department in a labor-management dispute if such picketing interferes with an agency's operations; or "(ii) To condone any activity described in paragraph (b)(7)(i) of this section by failing to take action to prevent or stop such activity; or" What actions are a labor organization authorized or expected to take "to prevent or stop such activity"? Will a labor organization be expected to exercise police powers (e.g., arrest, use of force, violence, etc.) in order to "prevent or stop such activity"? I recommend that the words "take action" be replaced by the word "cooperate" and that an exception be added such that it is not a ULP for the labor organization to fail to cooperate to prevent or stop such activity of which it is unaware, or that section (ii) be eliminated altogether. Sec. 9901.917 Duty to bargain and consult. [FR Page 7601] "(d) "(2) Except as otherwise provided in Sec. 9901.910(c), management has no obligation to bargain or consult over a change to a condition of employment unless the change is otherwise negotiable pursuant to these regulations and is foreseeable, substantial, and significant in terms of both impact and duration on the bargaining unit" I expect that there will be considerable debate over the meanings of "substantial, and significant in terms of both impact and duration". "(e) If a management official involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Board in accordance with procedures established by the Board." It would be more fair to have such a matter resolved by an authority outside DoD. I recommend FLRA. This appears to be inconsistent with section 9902(m)(6) of Public Law 108-136, which specifies "The labor relations system developed or adjusted under this subsection shall provide for independent third party review of decisions, including defining what decisions are reviewable by the third party, what third party would conduct the review, and the standard or standards for that review." Sec. 9901.918 Multi-unit bargaining. "(a) Negotiations can occur at geographical or organizational levels within DoD or a Component with the local exclusive representatives impacted by the proposed change. "(b) Any such negotiations will-- "(1) Be binding on all parties afforded the opportunity to bargain with representatives of DoD or the Component;" Multi-unit bargaining could be very expensive depending on the geographic locations of the bargaining units involved and wherever the bargaining takes place. This could prove to be inefficient. Also, "providing" a party an opportunity to participate in a locale or in a manner that the party cannot afford is not really providing an opportunity to participate, and, as such, may be in violation of provisions of Public Law 108-136 which require collective bargaining. "(4) Be subject to impasse resolution by the Board under procedures prescribed by the Board. In resolving impasses, the Board will ensure that agreement provisions are consistent with regard to all similarly situated employees. The determination as to which organizations are covered under multi-unit bargaining is not subject to review by the Board." Impasse resolution by a Board that is appointed by the Secretary or DoD, who is surely to be one of the parties to the impasse, cannot be construed as fair. Who will determine which organizations are covered under multi-unit bargaining? Sec. 9901.919 Collective bargaining above the level of recognition. "(a) Negotiations can occur at the DoD or Component level with labor organization(s) at an organizational level above the level of exclusive recognition. The decision to negotiate at a level above the level of recognition as well as the unions involved, is within the sole and exclusive discretion of the Secretary to determine and will not be subject to review." This seems rather inflexible, and may be in violation of section 9902(b)(1) of Public Law 108-136, which requires that "Any system established under subsection (a) shall-- (1) be flexible." "(b) Any such agreement reached in these negotiations will-- "(1) Be binding on all subordinate bargaining units of the labor organization(s) afforded the opportunity to bargain at the level of recognition and their exclusive representatives, and DoD and its Components, without regard to levels of recognition;" Bargaining above the level of recognition could be very expensive for some representatives depending on the geographic locations of the bargaining units involved and where the bargaining takes place. This could prove to be inefficient. Also, "providing" a party an opportunity to participate in a locale or in a manner that the party cannot afford is not really providing an opportunity to participate, and, as such, may be in violation of provisions of Public Law 108-136 which require collective bargaining. I am also concerned about the ability of higher levels to adequately appreciate the unique needs and concerns of lower-level units. "(3) Not be subject to further negotiations with the labor organizations for any purpose, including bargaining at the level of recognition, except as the Secretary may decide, in his or her sole and exclusive discretion;" This seems rather inflexible. "(6) Be subject to impasse resolution by the Board under procedures prescribed by the Board. In resolving impasses, the Board will ensure that agreement provisions are consistent with regard to all similarly situated employees. The determination as to which organizations are covered under national level bargaining is not subject to review by the Board;" Impasse resolution by a Board that is appointed by the Secretary or DoD, who is surely to be one of the parties to the impasse, cannot be construed as fair. Who will determine which organizations are covered under multi-unit bargaining? Sec. 9901.920 Negotiation impasses. "(a) If the Department and exclusive representative are unable to reach an agreement under Sec. Sec. 9901.914, 9901.917, 9901.918, or 9901.919, either party may submit the disputed issues to the Board for resolution." Impasse resolution by a Board that is appointed by the Secretary or DoD, who is surely to be one of the parties to the impasse, cannot be construed as fair. Sec. 9901.922 Grievance procedures. [FR Page 7602] "(b)(1) Any negotiated grievance procedure referred to in paragraph (a) of this section will be fair and simple," This requirement of fairness is good, but it appears to contradict many procedures specified in earlier sections. "(c) The preceding paragraphs of this section do not apply with respect to any matter concerning--" What is the appeal procedure for matters listed in this section? Sec. 9901.923 Exceptions to arbitration awards. This section appears to describe a mechanism by which the Board can overrule the result of an arbitration arbitration (which, in section 9901.992(b)(iii) was described as "binding"). Since Board members are appointed by the Secretary and for limited terms, and may be reappointed only at the pleasure of the Secretary, it can hardly be construed as impartial or a fair adjudicator of issues involving the Secretary or DoD. This section, therefore appears to be in violation of sections 9902(h)(A) and (B)(i) of Public Law 108-136, which require any appeals; process established under this law to be fair and afford the protections of due process, and section (m)(6) which requires "independent third party review of decisions, including what decisions are reviewable by the third party, what third party would conduct the review, and the standard or standards for that review." "(d) Nothing in this section prevents the Board from determining its own jurisdiction without regard to whether any party has raised a jurisdictional issue." Perhaps nothing in this section prevents the Board from making such determinations, but section (m)(6) of Public Law 108-136, requires "independent third party review of decisions, including what decisions are reviewable by the third party, what third party would conduct the review, and the standard or standards for that review." Such third-party determinations may well conflict with any determinations by the Board on the same matter. [FR Page 7603] Sec. 9901.924 Official time. "(c) Except as provided in paragraph (a) of this section, the Authority or the Board, as appropriate, will determine whether an employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority or the Board will be authorized official time for such purpose during the time the employee would otherwise be in a duty status." This wording could be construed as granting the Board authority to restrict the ability of the labor organization to represent by restricting the use of official time. This could violate section (m)(2) of Public Law 108-136, which requires "The system developed or adjusted under paragraph (1) would allow for a collaborative issue-based approach to labor management relations." Restrictions of official time will restrict such collaboration. "(d) Except as provided in the preceding paragraphs of this section, any employee representing an exclusive representative or, in connection with any other matter covered by this subpart, any employee in an appropriate unit represented by an exclusive representative, will be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest." I am concerned that any requirement to "agree" might be used as a tool to restrict representation. Obviously, if one party wanted to restrict representation, it would never agree to the use of official time for it. Sec. 9901.927 Continuation of existing laws, recognitions, agreements, and procedures. "(b) Policies, regulations, and procedures established under and decisions issued under Executive Orders 11491, 11616, 11636, 11787, and 11838 or any other Executive order, in effect on the effective date of this subpart (as determined under Sec. 9901.102(b)(1)), will remain in full force and effect until revised or revoked by the President, or unless superseded by specific provisions of this subpart or by implementing issuances or decisions issued pursuant to this subpart." Does this mean that Executive Orders by the President will be subordinated to DoD implementing issuances, thereby placing authority of the Secretary and DoD component commanding officers over that of the President as Commander in Chief? This appears to be inconsistent with Article 2, Section 2 of the United States Constitution, which specifies "The President shall be Commander in Chief of the Army and Navy of the United States, ...." Are we to understand that the Secretary and his component commanders, by virtue of this section, will have power to overrule the President? In closing, I would like to offer a cautionary note which we have learned from the study of evolution: When one makes extensive changes to any complex system, one is very likely to do more damage than good. This is because when complex processes and relationships are involved in a working system (many of which may will inevitably escape notice or consideration in the change), many will be broken when major changes are made, and, similarly, the changes will in turn foster or require new processes and relationships, some of which will be harmful, and others which may be necessary but difficult or impossible to implement under the new arrangement. For example, what results do you think we might expect from rearranging the DNA of any living organism? Unless the change is very small, the result is probably not going to be viable. Similarly, NSPS would constitute a sweeping rearrangement of the instruction set, or "DNA", of the DoD civilian personnel system. I am concerned that the result may not be viable, and as such could seriously jeopardize national security. If the proposed changes are really needed, then I submit that it would be safer to implement them as a series of small changes, so we can check the effects of them as we go, and back up if necessary, rather than the sweeping all-at-once changes as proposed. Many persons may claim that NSPS proposes working conditions that are similar to those in the private sector. This may be true, but it is also widely recognized that government jobs generally pay lower salaries than can be obtained in the private sector. (Consider, for example, the salaries of the President or Congressmen, compared to those of CEOs and Board members of large corporations.) Many good employees accept this lower level of pay in favor of what has long been perceived as a higher level of job security. If we are to now lose that job security, and we are expected to work unpaid overtime, and temporary jobs, as is common in the private sector, then it will be necessary to realign salaries in accordance with those that are available in the private-sector salaries if we are to attract and retain the best employees. I thank you for your attention, and I look forward to hearing your thoughts on this matter. v/R Roger Werner END 1 For data supporting this conclusion, see: http://www.mindspring.com/~afge2113/issues - pay banding - experience at China Lake.. 2 Hopefully, Management will take swift corrective action when such acts come to their attention, but most such acts will probably never be recognized for what they are. 3 The First Amendment of the US Constitution specifically restricts laws that are enacted by Congress concerning religion. It has been suggested that these restrictions do not apply to a President. One might likewise infer that it does not restrict any part of the Executive branch of government, which includes DoD. Would the Secretary have authority to order mandatory removal of any employee who did not adhere to or support the "correct" religion or who supported a "wrong" religion? Indeed, a religious fundamentalist could construe (and many actually do) that certain private off-duty acts to threaten national security with disasters such as are said to have befallen the cities of Sodom and Gomorah, and therefore such acts should be MROs. 4 The first amendment of the US Constitution says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." There are some who contend that this proscription does not apply to the President, and perhaps likewise should not apply to any authority within the Executive branch of Government. However, even if this is the "true" or "intended" meaning of this amendment, such prohibited actions/policies are still a bad idea.