| Comment Number: | EM-023147 |
| Received: | 3/15/2005 2:40:03 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:
Re: Comments on Proposed NSPS Regulations?RIN 3206?AK76/0790? AH82 To Whom It May Concern: I offer comments on the proposed regulations on behalf of 500 bargaining unit employees of the Environmental Protection Agency?s offices in Denver and Golden, Colorado and in Helena, Montana. Generally the proposed system is missing critical detail. The proposed regulations repeatedly offer that more detail will be provided by ?implementing issuances? at some point in the future. ?Mandatory removal penalties,? the appeal process for performance ratings, the identification and description of premium pay and the procedures to be used by the NSLRB in resolving unfair labor practice charges, negotiability appeals and impasses are all still unexplained. These ?implementing issuances? are critical to making NSPS a functioning personnel system. DOD?s failure to even propose guidelines for these aspects of NSPS greatly diminishes Congress? and the public?s opportunity for meaningful comment on the proposal at hand. ?Implementing issuances? are de facto rule makings which should be subject to Federal Register publication for comment and the procedural requirements of the Administrative Procedures Act. The proposed NSPS is rabidly anti-union and defies congressional intent. Given the numerous problems with NSPS, the proposal should be withdrawn and completely reworked to provide for meaningful collective bargaining rights, protection from patronage, transparency, and accountability. The following pages provide comments on sections and sub-parts of the NSPS proposal. Thank you for your consideration, President Subpart A: General Provisions The comments accompanying Subpart A state that DOD will transition to a new pay system for GS employees first and that ?other categories of employees, including those covered by other systems outside of title 5, will be phased in as appropriate.? The NSPS law did not grant DOD this authority. No provisions of other titles other than title 5 can be waived, and neither can uncodified public laws be waived. Public Law-257, which sets the pay for certain Army Corps of Engineers employees, is uncodified. This law was discussed in U.S. Army Corps of Engineers, 21 FLRA 501 (1986). Section 9901.106 This section states that DOD will collaborate with employee representatives to develop the many forthcoming ?implementing issuances? that explain how the proposed regulations will actually work. The proposed regulations ignore the collaborative steps Congress required in section 9902(f) and 9902(m). These include participation in mediation and notification to Congress at various steps. The law requires collaboration with employee representatives beyond the process given in the proposed regulations. Any NSPS ?implementing issuances? are integral parts of the NSPS law and must comply with all the requirements in that law on collaboration with employee representatives. Subpart B: Classification Under this subpart, DOD would have the authority to establish a new pay system that replaces the GS and WG systems. DOD would create this new system by ?implementing issuance(s)? not published in the Federal Register for public comment. This approach precludes meaningful public comment on this subpart, and defies the procedural requirements of the Administrative Procedures Act. Subpart C: Pay and Pay Administration The proposed regulations do away with the General Schedule and Wage Grade systems. Consequently, Congress will no longer be involved in setting or adjusting basic pay or in providing cost of living increases. The proposed regulations provide that each employee?s pay will depend on his pay schedule and pay band, his rate range, his local market supplement and his performance payout (based on his performance rating). How DOD will go about making these determinations will be revealed later in ?implementing issuances.? Will there be wage surveys? Will wage surveys be subject to public scrutiny? How often will DOD conduct wage surveys? How will DOD determine what jobs in the local labor market are comparable to DOD jobs? Which local markets qualify for a supplement? This approach precludes meaningful public comment on this subpart, and defies the procedural requirements of the Administrative Procedures Act. Sections 9901.331-334 It would be far cheaper, timely and more efficient to use existing Department of Labor (DOL) and OPM survey mechanisms and standardized reports to determine appropriate locality pay adjustments. It would also introduce fairness and ease the transition to NSPS pay administration to provide annual across the board cost of living increases consistent with the rest of the federal civil service to all employees with satisfactory performance evaluations. Similarly, congressionally approved cost of living increases should be applied annually to pay band minimums and pay band ceilings. Cost of living increases should have budget priority before ?performance pay pools.? As the experience with the Federal Aviation Administration (FAA) shows, unless mandated to fund cost of living increases, DOD will likely be tempted not to fund them. Failure to fund cost of living increases for acceptable or satisfactory performing employees will harm DOD employee morale. Sections 9901.341-342 Performance Payouts The proposal to allow the award of different amounts of ?performance shares? to individual employees with the same performance rating is arbitrary and capricious. This flies in the face of the stated goal of NSPS goals of credibility and accountability. The final regulations should require DOD to justify in a written performance evaluation any differences between ?performance share? awards to individual employees. Section 9901.353 The proposed regulations also provide that, upon promotion, an employee?s pay can be set anywhere in the higher pay band. This eliminates the provisions of current law, 5 USC 5334, which specify the exact grade and step an employee receives upon promotion. At the barest minimum, upon promotion employees deserve to retain their previous rate of pay. Section 9901.361 NSPS premium pay is to be established in ?implementing issuances? without publication in the Federal Register for public comment. What will happen to overtime, compensatory time, Sunday pay, night pay, hazardous duty pay and holiday pay? As proposed in NSPS, DOD could abolish all these types of pay. Allowing DOD this discretion introduces pointless and widespread confusion to employees, management and the rest of the federal civil service. DOD should be required to justify in the Federal Register any proposed changes to premium pay, and to carefully consider public comment on any proposed changes prior to implementing such changes. Subpart D: Performance Management This subpart would eliminate 5 USC Chapter 43, with its requirements for valid performance standards and a good faith opportunity to improve before an employee is demoted or fired. No more than one progress review per year would be required. This identical lack of management accountability in the current system will lead to the same workplace problems as the current system. The NSPS performance management system should mandate mechanism for prompt management accountability to address inadequate employee performance. If manager cannot be bothered for a whole year to provide feedback on employee performance, employees deserve more than 15 days to respond to a proposal to reduce their pay for inadequate performance. Worst of all, performance ratings would not be grievable but could be challenged through some other procedure yet to be designed. Decades of federal experience shows that a grievance procedure with binding arbitration is the most efficient and reliable way of keeping both employees and managers honest. Without a negotiated grievance procedure, employees who embarrass DOD will be subject to unreviewable retaliation through the performance management system. This represents a step backwards. In this system, employees grapple with supervisors over who is most gregarious in the workplace. And the stakes are even higher: basic pay and retention in a RIF are on the line. This system as proposed is NOT going to contribute to a more productive workforce. Subpart F: Reductions in Force The NSPS proposal is certainly not simpler or easier to administer with respect to Reductions in Force (RIFs). The most confusing part is section 9901.607, which vaguely describes retention standing. It says that all employees in a competitive group (basically, a competitive level) will be placed on a retention list in descending order, based on tenure, veterans preference, performance rating and creditable service. And yet section 9901.603 provides for ranking the retention list based on "such other factors as the Secretary considers necessary and appropriate." How are the factors combined? For all the employees with the same tenure (say, career employees) does the disabled veteran get to keep his job? Does the employee with a high performance rating and 10 years of service get to displace the disabled veteran? Is this just one more example of a policy where we have to wait for the ?implementing issuance? to figure out what the heck is going on? It appears that the proposed regulations will not have tenure sub-groups. This is how veterans are given preference in a RIF under current OPM regulations. Disabled veterans were in tenure group IAD and other veterans were in tenure group IA. Employees in lower tenure subgroups would be released before veterans. It now appears that disabled veterans and other veterans will have to compete with non-veterans for retention in a RIF, something that Congress has never allowed. Subpart G: Adverse Actions The proposal would provide for ?mandatory removal offenses? for which no reduction in the penalty would be allowed. No list of such offenses is given. Instead, the proposal says that the Secretary can issue and change the list at will. This sort of unreviewable discretion is inappropriate for a political appointee. Specific mandatory removal offenses should be subject to congressional review and public comment via Federal Register notice. In contrast to the current law, which requires 30 days notice before an employee can be subjected to an adverse action, the new regulation would allow employees only 15 days notice, with only 10 days to submit a reply to the proposal letter. DOD has never demonstrated that national security been impaired by Congress requiring 30 days advance notice all these years. Why should this be changed now. Federal agencies have all the time in the world to investigate misconduct, talk to witnesses and gather evidence before proposing an adverse action against an employee. It is not due process to expect an employee who has received such a proposal to be able to review the evidence against him, find qualified representation, talk to relevant witnesses and compose a meaningful reply in just 10 days. Subpart H: Appeals Section 9901.807 The proposed regulation lengthens the process for appealing adverse actions. Adverse actions would continue to be appealed to MSPB administrative judges, but the judge?s decision could then be appealed to DOD, whose decision could then be appealed to MSPB headquarters, whose decision could then be appealed to the Federal Circuit. The current process for MSPB appeals already strongly favors the employer. Adding another employer controlled step to the process delays justice and adds unnecessary expense. Apparently the standards in this subpart would allow DOD to disagree with the MSPB administrative judge for almost any reason. DOD?s proposal to have the complete freedom to second-guess MSPB judges on adverse actions is unreasonable and a denial of employee due process rights. DODs argues in section 9901.907 that FLRA?s review of NSLRB decisions should be very limited and that the NSLRB decision must be sustained unless the traditional judicial review criteria of arbitrary and capricious or lack of substantial evidence are met. The same standard applied to FLRA review of NSLRB decisions should be applied to DOD review of MSPB judges decisions. Prompt adjudication of appeals is a good goal. However, there is a difference between promptness and excessive speed. Under the new regulations, MSPB judges would have only 90 days to issue a decision. Naturally, the regulations put no limit on how long the employer can take to investigate and gather evidence before proposing adverse action. Yet the employee must be able to find competent representation, complete his own investigation, complete discovery, identify and prepare all witnesses and complete his legal research in less than 90 days. As a practical matter, the employee will be allotted no more than a month for these tasks. The reason is that it usually takes 30 days for the agency to submit its appeal file to MSPB and no MSPB judge is going to allow a hearing to be held any later than one month before he has to issue a decision. This proposal would also allow MSPB judges to issue ?summary judgment,? meaning a decision without a hearing. Allowing a decision without a hearing is not due process. The proposal would unreasonably restrict discovery in appeals. Most egregiously, neither party may conduct more than two depositions. While it is conceivable an appellant might attempt an excessive number of depositions, surely the appellant has a right to more than two depositions, perhaps five? The proposal states that an adverse action may not be reversed based on the way the charge is labeled as long as the employee has been informed of the facts in sufficient detail to respond. The requirement that a public employer must prove what it alleges in the proposal letter is so fundamental that it is required by due process. If an employee has been charged with theft, falsification or insubordination and is not guilty of those charges, the action against him cannot be sustained. If the employer does not want to be required to prove those charges, it is free to select any other charges it likes. It can even charge the employee in the alternative (?you are charged with theft, but even if you didn?t intend to steal it you are also charged with unauthorized possession?) The courts have let federal agencies bring any kind of case they want against their employees. There is no need to trash the Bill of Rights to be able to fire a federal employee. Contrary to the assertion on page 7567 of your comments accompanying the regulations, procedural due process is not ?an excessively technical pleading requirement.? It is basic fairness. The proposed regulations would also sharply narrow the grounds on which MSPB could mitigate a penalty, thus rejecting the ?Douglas factors? which have been universally applied at MSPB and by arbitrators for a generation. The comments accompanying the new regulations say that the ?Douglas? decision ?has meant that MSPB has exercised considerable latitude in modifying agency penalties.? The MSPB has always been highly deferential to agency penalty selection. According to their report to Congress, in FY 2003, MSPB affirmed 80% of all agency actions and mitigated penalties in only 3% of appeals. In DOD, MSPB affirmed 88% of agency actions and mitigated penalties in 2.9% of appeals. DOD apparently seeks the complete abandonment of independent review by MSPB. Under the proposed regulations, the only basis for mitigating a penalty would be that it is ?so disproportionate to the basis for the action as to be wholly without justification.? Circumstances such as an employee?s extensive prior service, lack of prior discipline, an excellent performance record, the offense was inadvertent, everyone else who committed the same offense got less discipline?none of these things would justify mitigating the penalty. Reserving the right to impose unreasonable penalties on employees does not promote the efficiency of the service. The proposed regulations greatly restrict successful appellants in recovering attorney?s fees. Federal employees are rarely able to find attorneys with federal employment law experience. MSPB sustains agency actions over 80 percent of the time under the current system. Fee awards cannot be an economic burden on DOD. The MSPB?s most recent annual report says that seven (7) DOD employees got their adverse actions reversed or mitigated at MSPB in FY 2003. The purpose of a fee award is to encourage qualified attorneys to represent federal employees at less than their usual rates on meritorious cases?federal employees that otherwise could not afford to pay an attorney. If the personnel action is unjustified, the employee should not have to bear the cost of clearing his name and his record. What the employer knew or did not know at the time it took the action, or whether it was acting out of malice or bad faith, should not be the key factors in whether the employee can be reimbursed for his attorney?s fees. What if the employee is simply innocent? The employer accused him of misconduct and thought its evidence and its witnesses would prove the accusation, but they didn?t. It is wrong to make that employee foot the bill for the employer?s mistake. What about an employee who admitted the offense from the start but vigorously disagreed that he should be fired for it? A fee award could be denied solely because the deciding official claimed ignorance of all the mitigating factors. The proposed narrowing the basis for recovering attorney?s fees is is not permitted by the NSPS law. One of the ?non-waivable? sections of the law is 5 USC 5596, the Backpay Act. This requires an award of attorney?s fees if the standards established under 5 USC 7701 are met. Those standards are not as narrow as the proposed regulation, and those standards include the standards developed by the MSPB over the years in the ?Allen factors.? The proposed regulations attempt to circumvent this fact by providing, in section 9901.107(b)(2), that the reference in 5 USC 5596 to the standards for attorney?s fees in 5 USC 7701 is considered to be a reference to a modified 5 USC 7701 consistent with the NSPS regulations. The statute cannot be waived, thus parts of another statute that are incorporated into the first statute cannot be waived either. The proposal forbids an MSPB judge from requiring any party to engage in settlement negotiations. This is another expensive and inefficient public policy proposed out of sheer DOD arrogance. MSPB judges authority to compel settlement DISCUSSIONS should be encouraged and empowered, not brushed aside. The proposal also prohibits the suspension of any case processing on an appeal unless the request for such a suspension is submitted jointly. Again, this is for DOD, not the employee. DOD has all the time and all the personnel it needs to put together its case against the employee. If the employee needs time to locate witnesses or to come up with the money to hire an attorney, DOD is unlikely to agree to a continuance. Adjudicators in every venue, from arbitrators to administrative judges to federal judges, are empowered to grant requests for extra time for good cause shown. There is no credible reason for taking this power away from MSPB judges on DOD appeals. Labor-Management Relations: Subpart I This subpart is completely defies the congressional mandate to preserve collective bargaining and binding arbitrations rights for employees covered by NSPS. The meaning of ?collective bargaining? is well settled in the federal sector. Federal collective bargaining requires that before the union or the employer can change personnel policies or working conditions, the first party must propose the change to the other party and must agree to meet face-to-face to try to resolve the other party?s concerns about the proposed change. The parties either reach a binding written agreement or arrange for a third-party impasse resolution. AFTER the agreement is signed, or when the third party has ruled on the impasse, the change in personnel policies or conditions of employment may be implemented. The proposed regulations eliminate collective bargaining in DOD. Nearly all changes would be ?management?s rights? and not subject to negotiations- not even over the procedures management will follow or appropriate arrangements for affected employees. In short, the employer will impose the change. No advance notice. No bargaining. For those topics where some sort of bargaining is still allowed, and assuming DOD does not consider the impact on employees ?de minimis,? impasses will be resolved not by a third-party but by the Secretary?s hand-picked NSLRB. Even if no ?management?s rights? are involved, DOD can still refuse to bargain over any aspect of DOD or Component issuances, according to section 9901.917. Section 9901.903 Under the proposed regulations, the definition of conditions of employment is modified so as to exclude determinations regarding pay. This defies precedent and logic. This will deprive unions of the ability to bargain over any aspect of pay and will deprive employees of the ability to grieve things like the denial of overtime or premium pay. Also, as noted above, the proposed regulations would forbid employees from grieving their performance ratings. The definition of a grievance is modified so as to disallow any grievance alleging a violation of a law, unless that law was enacted for the purpose of regulating working conditions. The Privacy Act was not enacted primarily to regulate working conditions. The First Amendment was not enacted primarily to regulate working conditions. Yet, violations of those rights can have a profound affect on the working conditions of an employee. There is no good reason why these violations should not be covered by the grievance procedure. The advantage to the employer is to force employees who wish to remedy the violation of their legal rights in the workplace into the more time consuming and costly venue of federal court. Section 9901.922 The proposed regulations take away the employee?s right to go outside the grievance procedure into court. They say that if an employee has the option to grieve any particular issue, he may not file a lawsuit on that issue. Congress believes that federal employees should have the same access to court as any other American citizens. Congress amended 5 USC 7121 in 1994 to strike down exactly the same rule DOD now wants to revive. Section 9901.923 Until now, appeals from arbitration awards have been limited to narrow grounds. Those narrow grounds would continue to apply to unions, but not to DOD. The proposed regulations say that a legitimate basis for an exception to an arbitrator?s award is ?the arbitrator?s failure to properly consider the Department?s national security mission.? Absent any regulatory or statutory guidance, it means the NSLRB can overturn any arbitrator?s award it doesn?t like. Sections 9901.918 and 919 Whether a union requires ratification of a labor contract and the procedures for ratification are the internal business of the union. Unions operate by democracy. Ratification votes have been a feature of collective bargaining for generations. It is impossible to believe that Congress wanted to preserve collective bargaining and at the same time permit the abolishment of ratification votes. Section 9901.914 The proposed regulations take dead aim at two rights federal agencies have long resented- formal discussions and ?Weingarten? meetings. A union would be entitled to attend a formal discussion only where a new personnel policy or working condition is being announced. The regulations would exclude formal meetings about EEO complaints from the coverage of formal discussions. As far as ?Weingarten? meetings are concerned, the new regulations would overrule the Supreme Court?s decision that independent agencies acting on behalf of management, like the IG, must allow union representation. Perhaps the most disturbing part of DOD?s explanation of its regulations appears here (page 7571 of the Federal Register issuance). DOD says that it will hold union representatives to the same standards of behavior in these meetings as any other employees. The comments that correspond to this proposal say that DOD?s new regulations reject the ?flagrant misconduct? doctrine developed over the years by the FLRA (and the NLRB as well). The message is that union representatives will have no protection for any kind of vigorous expression of their viewpoints. Since you can be disciplined for calling your supervisor a jerk in the workplace, you can now be disciplined for calling the labor relations officer a jerk when he rejects a perfectly timely grievance as untimely. As if there are not enough disincentives to volunteering to be a union steward already. Conclusion The proposed regulations do not preserve the principles of fair treatment, due process or collective bargaining. The result is a mean-spirited, one-sided system that shortens every deadline that could benefit unions and employees, that ensures that vital matters like pay and performance ratings are beyond the reach of independent third-party review, and that guarantees that DOD will have the final word on any personnel policy or practice affecting any DOD employee. The proposed regulations should be withdrawn. ---------------------------------------------------------------- This message was sent using IMP, the Internet Messaging Program.