| Comment Number: | EM-023079 |
| Received: | 3/15/2005 6:55:24 PM |
| Subject: | Notice of Proposed Rulemaking, Request for Comment |
| Title: | National Security Personnel System |
| CFR Citation: | 5 CFR Chapter XCIX and Part 9901 |
| No Attachments |
Comments:
March 15, 2005 DoD NSPS Comments , DoD NSPS Comments: General: I believe the proposed NSPS will undermine the Civil Service and hurt the mission of the DoD. The ?NSPS? proposals treat the front line DoD civilian employees as though the employees are not committed to national security. I believe the current employees are 100% committed to National Security. These ?flexibilities? take away our rights to have a real voice on working conditions and take away rules that protect basic fairness and merit. NSPS will actually create turmoil and undermine National Security readiness. Mission effectiveness is improved when people feel they are part of a team. That is why the military spends so much time building psychological training models to strengthen teamwork. Enhanced national security is developed by all of us looking out for threats against our team, not by looking inward to see how we can best position ourselves for personal reward. Nearly all experts in the field of labor will tell you that the most efficiency is gained when employee input is increased regarding working conditions, not removed as the NSPS does. Furthermore, on many key aspects of NSPS, DoD fails to provide detail about how provisions are to be implemented, stating the details will be provided in future issuance. This is counter to the intent of Congress that employees and their representatives be involved in the development process and robs employees of the opportunity to make informed comments on rules which will have major impact on their futures. I believe it is only fair that DoD be required to draft all implementing instructions and guidance prior to employees having the opportunity to submit comments. Subpart C Pay, Sections The employees in DoD should continue to receive the same annual pay across-the-board adjustment that other GS/FWS workers receive. There is no indication that the new authorities granted to DoD will produce a more effective or efficient accomplishment of the DoD mission. To the contrary, overwhelming experience in the federal sector with pay for performance plans has been a dismal failure including both historical and the current efforts under the current administration?s ?management flexibilities? at the Transportation Security Agency, or at NASA. The current system is a mission driven, performance based merit system that can motivate, recognize and reward excellence. The fact that managers fail to utilize the existing tools does not justify the conversion to an unproven system. Performance recognition has suffered from the fact that DoD has tight budgets and never adequately funded performance recognition. For NSPS, DoD has emphatically stated no additional funding will be allowed, setting the stage for failure. The individual pay increases for performance should include guaranteed percentages in the regulations so that employees will understand the pay system and what their pay increase will be depending on their performance. While DoD does promise to place employees into a NSPS pay band with their initial pay being the same, of more importance than the initial pay under NSPS is the employee pay in the future. DoD says that the amount allocated for compensation of the entire DoD workforce through 2008 will be the same as if there had been no departure from Title 5. After 2008 there is no such guarantee, DoD would be free to deny or reduce increases due to budgetary constraints, resulting in the salaries of DoD employees failing to keep pace with the private sector or inflation and ultimately, lower retirements. NSPS may not affect the formula for calculating your retirement benefits, but your pay is still the main element for determining your annuity and that provision has been drastically altered. DoD also proposes to waive the current CFR language on premium pay such as shift differential pay and environmental differential pay. Premium pay is granted to compensate employees for disruption to their personal life caused by shift work or from hazardous work place conditions. There is no need for DoD to rewrite the rules for these types of pay. DoD proposes to eliminate the existing ?Locality Pay? whose rate is set by congress and replace it with a locality-based component of pay called a ?local market supplement? that is paid at DoD?s discretion in addition to an employee?s basic pay. The local market supplement will be based on market conditions related to geographical and occupational factors, and may differ from one occupation to another in a given locality area. This will result in some occupations unfairly receiving a locality adjustment while others do not. The cost of living is equal for all occupations. Subpart D Performance Management Under NSPS the importance of a performance rating of record is vastly increased. A rating of record will be used as a basis for a pay determination, determining RIF retention standing, and such other action that DoD considers appropriate. The NSPS performance management system will establish a multi-level rating system, back to the 5-step system DoD said was unmanageable and abandoned in favor of pass/fail. Supervisors and managers will have an important role in determining performance-based pay increases. While DoD indicates it will train supervisors, these are the same people that have supposedly been trained and held accountable for their actions for the last 30 years. Training resources are always scarce due to other priorities. While DoD may do some training, past history demonstrates that training dollars will be spent for other important things. Supervisors will communicate performance expectations, prior to holding the employee accountable for them. DoD says it wants the flexibility to change and modify expectations throughout the year, but claims that supervisors will inform and involve employees in those changes. It is hard to imagine managers, many of whom fail to have any performance discussions with their employees now, communicating constant changes in expectations. Supervisors will be expected to involve employees in the development of their performance expectations, however, this rarely happens under the current system, and the final performance expectations are at management?s discretion. Supervisors will monitor the performance and contributions of their employees and provide regular and timely feedback on their actual performance with respect to their performance expectations including one or more interim performance reviews during each appraisal period. DoD implementing issuances will set up procedures for supervisors to use to develop employee performance and address poor performance. This is no different from the current appraisal system, which is notorious for its failure to adequately document, motivate, deal with poor performers, or reward employees, with no indication of why NSPS would be different. A rating of record may be challenged only through a reconsideration procedure that DoD will establish. A payout determination will not be subject to reconsideration. In other words, there will be an internal process, not a negotiated grievance process, to challenge a performance appraisal rating. And there will be no process, not even an internal one, for challenging a performance payout. While NSPS will make the rating far more important than it is now, it will take away the right that an employee currently has to appeal that rating to an outside arbitrator. And, although supervisors will impact employees? pay both by the rating they assign and the number of shares they choose to give, there will be no accountability and no redress for those decisions. In order to insure fairness and accuracy, DoD employees must be able to appeal any performance rating to an independent grievance and arbitration process if this system is to have any possibility of success. Subpart E ? Staffing and Employment DOD and OPM will be able to jointly create new competitive or excepted appointing authorities for NSPS positions. These may include noncompetitive appointments and excepted appointments that may lead to a subsequent noncompetitive appointment to the competitive service. This will create new patronage opportunities for DOD. The Secretary may establish probationary periods "as deemed appropriate" for employees in the competitive and excepted service covered by NSPS. No outside limits are set in the proposed regulations. Could probationary periods be set for 3 years? 5 years? 10 years? No criteria are included for determining the appropriate length of probationary periods. Since probationary periods will be set for employees and not jobs, persons appointed to the same position could serve different probationary periods. An employee appointed to a given position in one part of the country could serve a different probationary period from someone appointed somewhere else. A preference eligible, who has completed 1 year of a probationary period, would have adverse action and appeals rights. The proposed regulations would allow DOD to establish in-service probationary periods and prescribe conditions for completing such periods as assignments, reassignments, reinstatements, details, transfers and promotions. Currently an employee moving into a supervisory position for the first time serves an additional probationary period. DOD would be able to set these additional probationary periods for any and all positions. All promotions could be considered probationary under this section. The proposed regulation does not say what happens to an employee who does not complete an in-service probationary period successfully. Subpart F Workforce Shaping DoD should not change the current layoff/RIF rules that give balanced credit to performance and the employees valuable years of committed service to DoD. Today, years of committed service (seniority) and performance are both taken into consideration. Under NSPS your last performance rating determines your retention standing. For example, an employee with 20 years service with 19 years of ?outstanding ratings? and the most recent appraisal of ?excellent? would be let go before a 3 year employee with 2 years of ?meets expectations? whose most recent rating was outstanding. Subpart G Adverse Actions ?Adverse Action? means a removal, suspension, furlough for 30 days or less, reduction in pay, or reduction in pay band (or comparable reduction). In addition to the customary adverse actions, NSPS adds reference to ?reduced in pay band (or comparable reduction)?. NSPS adds ?Mandatory Removal Offenses? (MRO), a list of which DoD will publish in the future. The Secretary has the sole, exclusive, and unreviewable authority to determine what offenses will require removal as the only acceptable penalty or to mitigate that penalty. Under NSPS, employees subject to a proposed adverse action, have the right to a notice at least 15 days in advance of the proposed, a reply period of at least 10 days that will run concurrently with the notice period, and a notice of decision. Under NSPS, an employee?s ability to reply appears to end prior to the end of the proposed notice period. Employees believed to be a threat to themselve?s, others, or government property can be reassigned, required to take leave, or placed in a paid, non-duty status. Notice periods can be shortened to 5 days if the employer has reasonable cause (not defined) that the employee may have committed a crime for which imprisonment may be imposed. There are no indications that the employer would have to have any actual knowledge of a criminal investigation being conducted or actual charges being filed against the employee. The Department may disallow a representative of the employee?s choice by the mere assertion that a conflict of interest may exist, that security may be compromised, or that the employee?s chosen representative cannot be released because it would cost too much or his or her duties cannot be interrupted. Subpart H ? Appeals According to DoD, NSPS does not change critical employee rights such as merit systems principles, due process, whistleblower protections, and protection against discrimination and personnel practices. There will continue to be avenues for employees to seek redress. However, The processes are changed significantly undermining due process, fairness, merit system principles and the ability to be a whistleblower. ?Poor? managers will be free to motivate by fear and intimidation without real accountability. Even the Merit Systems Protection Board won?t be able to change a suspension or termination it deems unreasonable. The appellate procedures of MSPB are modified substantially. The appeal filing deadline is shortened from 30 to 20 days. Neither party to an appeal may unilaterally file for additional time to pursue discovery or settlement. Either party can ask MSPB to limit discovery because the information is privileged; not relevant; unreasonably cumulative or duplicative; or can be gotten somewhere else more easily. The proposed rules also limit interrogatories, depositions, and other means for gathering facts and. Employees will not be afforded interim relief or stays of actions unless ordered by the full MSPB, not just an administrative judge. Even if the full MSPB orders an employee back to work, the Department has the sole, exclusive, and unreviewable authority to place the employee in an alternative position or on excused absence pending final disposition of the case. The parties may mutually agree to use Alternative Dispute Resolution procedures. The MSPB may not reverse an action by the Department due to mislabeling or characterization of the charge as long as the employee is given enough facts to respond to the charge. So if management mistakenly accuses an employee of one thing, but then claims it really meant something else, the employee is supposed to be able to figure out what management really meant, and present a good case on his or her own behalf. MSPB also may not reverse the Department?s action based on the way a performance expectation is expressed, as long as the expectation would be clear to a reasonable person. Under NSPS, managers will be expected to change and modify performance expectations all during the year. DoD seems not to want them to be held accountable for their communication of those expectations, rather, their miscommunication must be upheld by MSPB. Attorney fees may be granted when the employee prevails, but only if the action taken against the employee was wholly without merit based on facts known to management at the time it took the action. If management says that an employee is guilty, but he or she is found innocent on appeal, it can always quibble that facts came out in the hearing that it didn?t know, so DoD should not have to pay attorney fees. Once again, DoD is trying to avoid accountability for its actions. The Department will have authority to review MSPS decisions and reverse the initial decision merely by claiming impact on the Department?s national security mission, erroneous interpretation of the law, government-wide rule or regulations. Apparently, the Department also will be granted the power to determine for itself what cases constitute precedent. Mitigation of Mandatory Removal Offense actions are only allowed by the Secretary. For other adverse actions, MSPB or arbitrators may only mitigate (substitute a lesser penalty) if the penalty is ?wholly without justification.? This is an almost impossible standard. Currently, reasonable factors, such as the length of employment and prior record of the employee, may be taken into consideration in finding whether management has applied an appropriate penalty. Under NSPS, such reasonable considerations are out the window. Due process and fairness demand that the independent body reviewing a major suspension or termination be allowed to alter the proposed penalty if they deem it to be unreasonable. The current standards approved by the courts to guide such bodies should continue to be used. Subpart I ? Labor-Management Relations DoD states: the implementation of the NSPS labor relations system will not eliminate unions or bargaining units. Employees will still be able to be represented by labor organizations and to bargain collectively. The proposed rules enable the Department to act expeditiously in carrying out its mission by limiting the situations that are subject to bargaining and speeding up the bargaining process. While I endorse speeding up the bargaining process, these proposed rules trample on the rights and freedoms DoD employees have helped defend for all America. While I agree that NSPS will not do away with employee unions, it takes away the vast majority of our ability to bargain many of the important items that affect an employee?s everyday working life, issues that have been bargained for decades. Under NSPS, certain groups of employees who presently enjoy the protection of belonging to a union will be exempted from coverage. The new rules would unfairly bar from coverage, supervisors of military members, employees engaged in all kinds of personnel work, even in a purely clerical capacity, and attorney positions. Negotiations can occur at the DoD or Component level with labor organization(s) above the level of exclusive recognition. The decision to negotiate at a level above the level of recognition of the unions involved, rests with the Secretary and will not be subject to review. Any such agreement reached in these negotiations will 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. The agreement will supersede all conflicting provisions of other collective bargaining agreements of the labor organization(s), including collective bargaining agreements negotiated with an exclusive representative at the level of recognition. Except as provided for by the Secretary, there will be no further negotiations with the labor organizations for any purpose, including bargaining at the level of recognition. These agreements will be subject to agency head review but not to ratification. Prior to NSPS, DoD managers could take actions within their rights, but had to bargain over the procedures they would use and arrangements they would make for employees harmed by their actions, such as single parents suddenly deployed away from their children. Under NSPS, this would change. Not only would managers not be required to bargain over the procedures they will observe in exercising their authorities in paragraphs (a)(1) and (2), they would be prohibited from bargaining over them. Management would only be allowed to consult over those procedures. The consultation process puts no pressure on managers to try to reach agreement with the union. Management is not even required to abide by any procedures it develops unilaterally. The regulations say, ?Management retains the sole, exclusive and unreviewable discretion to determine the procedures that it will observe in exercising the authorities set forth in ? 9901(a)(1) and (2) and to deviate from such procedures, as necessary DoD managers under NSPS will continue to have an obligation to bargain over procedures and appropriate arrangements when exercising their rights. Management will also have an obligation to bargain over appropriate arrangements for employees adversely affected by the exercise of any authority, provided that the effects of such exercise 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. ?Foreseeable,? ?substantial,? and ?significant,? are undefined and subject to abuse by managers who want to evade their bargaining responsibilities. Even where managers are required to bargain over appropriate arrangements, the proposed regulations remove any duty to bargain over arrangements for the routine assignment to specific duties, shifts, or work on a regular or overtime basis. And management is required only to give notice to the union at the same time it actually makes a change or carries out an action. The proposed regulations allow but do not require managers to give any advance notice at all. The union will only have the right to be present at any formal discussion between a Department management official(s) and bargaining unit employees if the purpose of the meeting is to discuss and/or announce new or substantially changed personnel policies, practices, or working conditions. This right does not apply to meetings for the purpose of discussing operational matters where any discussion of personnel policies, practices or working conditions is a reiteration or application of existing personnel policies, practices, or working conditions; is incidental to the announced purpose of the meeting; or does not result in an announcement of or a promise to change an existing personnel policy(s), practice(s), or working condition(s). Under NSPS, a manager could call a meeting to discuss ways to better accomplish a task and exclude the union because it is strictly about operational matters. If one of the employees suggests changing the overtime roster as a way to get the job done, do we believe that the supervisor will say that such changes cannot be discussed in the meeting and either change the subject or call for a union representative? The proposed regulations weaken the so-called ?Weingarten? rights for employees subject to an examination by an agency official in connection with an investigation. The employee will still have the right to request a union representative, but, the 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 Army Criminal Investigation Division and the Air Force Office of Special Investigations. NSPS establishes the National Security Labor Relations Board (NSLRB), composed of at least three members. They will be appointed by the Secretary for terms of 3 years, although the first members will be appointed for staggered terms of 1, 2, and 3 years. The NSLRB will do many of the things currently done by the FLRA with regards to bargaining issues. Establishment of a new body for resolving employee or labor relations issues is a duplication of effort, will result in inconsistent decisions throughout government and increased costs to taxpayers. Members of the Board are supposed to be independent, distinguished citizens of the US, well known for their integrity, impartiality, and expertise in labor relations, and/or the DoD mission and/or other related national security matters, and will be able to acquire and maintain an appropriate security clearance. The Secretary will appoint two members, one to be Chair of the Board. The third member will be appointed by the Secretary from a list of three to five nominees developed in consultation with the Director of OPM. There is no provision to solicit or consider nominations from labor unions. This biased forum for appeal defeats the stated purpose of transparency that was supposed to be a guiding principle of NSPS. The Board will establish procedures for handling cases that address all matters associated with a negotiations dispute, including unfair labor practices, negotiability disputes, and bargaining impasses. In addition, the NSLRB, not the FLRA, will resolve exceptions to arbitration awards and disputes over information requests. Decisions of the Board are final and binding. A Board decision is subject to review by a court after it has been reviewed by the FLRA. Sincerely,