| Comment Number: | EM-023157 |
| Received: | 3/16/2005 3:54:36 PM |
| Subject: | Notice of Proposed Rulemaking, Request for Comment |
| Title: | National Security Personnel System |
| CFR Citation: | 5 CFR Chapter XCIX and Part 9901 |
| No Attachments |
Comments:
March 16, 2005 Program Executive Office National Security Personnel System Attn: Bradley Bunn 1400 Key Boulevard, Suite B-200 Arlington, VA 22209-5144 electronically filed RE: Department of Defense National Security Personnel System Docket No. NSPS-2005-001; RIN 3206-AK76 Dear Secretary Rumsfeld: These comments are being submitted by the Federal Education Association (a unified state affiliate of the National Education Association) in response to the February 14, 2005 proposed rule establishing the National Security Personnel System (NSPS). The FEA is a professional association and labor organization certified by the Federal Labor Relations Authority as the exclusive bargaining representative of most of the educators employed in the Department of Defense Dependents Schools overseas and in the Department of Defense Domestic Dependent Elementary and Secondary Schools in the continental United States. The FEA also holds National Consultation rights with the Department of Defense. The FEA has approximately over 6,000 members and represents bargaining units of approximately 8,000 educators. Two other unions (the Overseas Federation of Teachers and the Antilles Consolidated Education Association) represent educators in the Department of Defense in the Mediterranean and Puerto Rico. The FEA does not represent the educators in these locations. The comments incorporate and are in addition to those submitted in the Joint Comments and Recommendations submitted by the United Department of Defense Workers Coalition (of which the FEA is a part) to the extent not specifically inconsistent herewith. Those comments are incorporated as if fully set forth herein. Section 9901.102 - "Eligibility and Coverage" The section of the proposed rule should be revised to clarify that subparts B through H of the proposed rule are inapplicable to the educators employed by the Department of Defense Education Activity. The corresponding "coverage" subsections in subparts B through H should also be clarified to exclude the educators from coverage. Although 5 U.S.C. ? 9902(a) provides that the Secretary may establish a NSPS "notwithstanding and other provision of this part" of Title 5, the overseas teachers employed by DODDS are paid pursuant to the Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C. ? 902(a)(2), which provides that the salaries of teachers in DODDS schools must be "equal to the average of the range of rates of basic compensation for similar positions of a comparable level of duties and responsibilities in urban school jurisdictions in the United States of 100,000 or more population." This has resulted in a salary schedule that is based on the level of educational attainment of the teacher and years of service. Similarly, the salaries of teachers in DDESS are set pursuant to 10 U.S.C. ? 2164(e)(3)(A) which provides that compensation should be comparable employees employed in various public school districts in the surrounding communities. Section 9902 of title 5 gave the Secretary to waive those other sections of Part III of title 5 which establish the pay of DOD employees covered by the General Schedule or Prevailing Rate employees. There is no authority in ? 9902 for the Secretary to waive those provisions of title 10 and title 20 that establish salaries for DOD educators. Subpart D of the proposed rule establishes a performance management system that inextricably links pay and pay advancement to performance, rather than to satisfactory service and longevity. It cannot be applied to DOD educators because the applicable pay laws, which have not been waived by Congress, require that compensation be based on pay practices and salary schedules used by specified public school systems, where pay advancement is linked solely to educational attainment and years of service. Inasmuch as Subpart D cannot legally be made applicable to DOD educators, neither can subparts B, C and E-H. As stated in ? 9901.102(b)(2), "no category of employees may be covered by subparts B, C, D, E, F, G or H of this part unless that category is also covered by subpart D of this part." Subpart I - Labor-Management Relations This subpart of the proposed rule is contrary to law for the following reasons: . 1. The labor relations system must "address the unique roles that the Department's civilian workforce plays in supporting the Department's national security mission." ? 9902(m)(1). However, the proposed rule does not address the "unique role" played by dependents schools teachers by lumping them in with other employees whose responsibilities are more directly related to national security. While the labor relations system developed under subsection (m) "shall be binding on all bargaining units in the Department of Defense" (? 9902 (m)(8)), it is not necessary to waive all of the provisions of chapter 71 for all such units (even assuming that it has the legal authority to do so which the Coalition and its members contest), and the system should be tailored as necessary to balance the needs of DOD versus the bargaining rights of the employees. Teachers will not be covered by subparts B-H. In addition, the rationale given for expanding the scope of management rights is wholly inapplicable to the teachers: "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 its must be able to act without unnecessary delay." 70 Fed. Reg at 7570. Unlike other civilian employees, the teachers do not play combat support roles in which they might be reassigned to perform duties of uniformed personnel who are deployed. The overseas teachers are required to sign mobility agreements that make them subject to reassignment to other overseas duty locations at the end or a one or two year assignment. DODDS also operates a transfer program that, in addition to the mobility statements, already provides all flexibility needed to redeploy teachers to schools needed elsewhere. Our educators represent one of the finest school systems in the country, based on the scores in National Assessment of Education Progress (NAEP). The DoDEA students have the smallest "achievement gap" between minority and non-minority students in the United States. Vanderbilt University issued a study several years back that found DoDEA to be a model for the rest of the country, and recommended that the states use DoDEA as an example for their systems. Therefore, the failure of the proposed rule to consider and accommodate the unique role that DOD educators play in supporting DOD's mission and to tailor a labor relations program accordingly is contrary to ? 9902(m)(1). The rationale for exempting other DOD civilian employees from the provisions of chapter 71 is not applicable to DOD educators, and accordingly it is arbitrary and capricious to include them in the coverage of subpart I. Subsection 9901.904(b) of the proposed rule should be amended to include DOD educators among the "exclusions" from subpart I. 2. The labor relations system must "allow for a collaborative issue-based approach to labor management relations." ? 9902(m)(2). However, the system contained in the proposed regulations creates no new forum or processes by which such "collaborative" efforts will be undertaken - it merely eliminates existing labor relations structures. 3. Congress intended to preserve collective bargaining (see, e.g. ? 9902(g); ? 9902(m)(5).) However, the proposed system effectively eliminates collective bargaining: A. Although ? 9901.910 and ? 9901.917 portends to preserve and define the right and scope of bargaining, that which may be bargained over is a null-set: P Although "procedures" by which management may carry out rights in ? 9901.910(a)(3) (the right to lay off, reduce in grade or pay, make selections) are ostensibly negotiable, the procedures by which DOD "takes whatever other actions may be necessary to quintessential out the Department's mission" are nonnegotiable under (a)(2). If a matter can be categorized under are within the definition of both (a)(2) and (a)(3), it is nonnegotiable. See subsection 9910(f). The right to bargain over the procedures by which DOD exercises its rights under (a)(3) is obviated because everything covered in that section is encompassed within the larger category of "whatever actions which may be necessary to carry out its mission." P Although the right to bargain over certain limited "appropriate arrangements" for employees adversely affected by the exercise of certain management actions is ostensibly preserved by subsections 9901.910 (e)(1) and (e)(2), this is illusory because management has no obligation to notify the union of an intent to change working conditions until they actually do ("If an obligation exists to bargain . . . management will provide notice to the exclusive representative concurrently with the exercise of that authority." ? 9901.901(d) Thus, only post-implementation bargaining will occur. However, subsection 9901.901(g) says that any such agreements cannot be retroactively applied! Further, unions will be unable to negotiate, in a term agreement, appropriate arrangements for employees who they anticipate might be adversely impacted in the future, because the same subsection says that any such agreement will not be "binding on subsequent acts." P Assuming that there is anything that is substantively bargainable under ? 9901.910, any DOD component with whom a union is bargaining over any issue may obviate its obligation to bargain over the matter simply be issuing a policy that covers the matter under negotiation. ?9901.917(d). B. Elimination of pay from the definition of "conditions of employment" in ?9901.903 is arbitrary and capricious because (a) wages are the quintessential "condition of employment" and fits within the natural definition of the term and (b) has nothing to do with nor does it advance national security. C. The proposed rule terminates bargaining within arbitrary time periods and forces submission of bargaining dispute to the Board regardless of whether there is an actual impasse, regardless of the number of days the parties have actually bargained, and regardless of whether the parties have even had the opportunity to discuss all the proposals in dispute. ? 9901.917( b ),( c ). 4. The NSPS must "provide for independent third party review of decisions." subsection (m)(6). The proposed board does not meet this statutory requirement of indepedence: P The Board members are appointed solely by Secretary. Unions do not even get to nominate a member, no less select one. P There is no guarantee that all members not be members of same political party, as in FLRA, NLRB. P Appointment for period of term does not preserve independence because (a) members may be reappointed for two successive one year terms and (b) Secretary or subordinate can revoke members security clearance at any time (which would disqualify him/her from continued service). P The Secretary may appoint any number of additional members (provided there is an odd number) above the established number of members. This allows Secretary to pack the Board at any time the Board begins to issue decisions which are not favorable to the Secretary. Other aspects of proposed system, while not necessary contrary to statutory language or intent, are "arbitrary and capricious": 1. The Board has "discretion to evaluate the evidence presented in the record and reach its independent conclusions" on factual issues and conduct a "de novo review" of all matters within its jurisdiction. ? 9901.908(a)(6),(7). "The Board . . . may also employ a de novo review to factual findings and contractual interpretation." 70 Fed. Reg. at 7570. The Board may do so even though it does not have the opportunity to view the witnesses' testimony and judge their credibility. Further, failure to defer to arbitrators' findings of fact and contractual interpretation undermines the finality of arbitration and violates the most basic precepts of Federal labor policy. See Major League Baseball Players Ass'n. v. Garvey, 532 U.S. 504 (2001); United Paperworkers v. Misco, Inc., 484 U.S.29 (1987) and cases cited therein. 2. Exceptions may be filed to arbitral awards "based on the arbitrator's failure to properly consider the Department's national security mission. . ." ? 9901.923(b). This basis for review is too vague and is standardless. Does this mean that the Board may overturn a decision if the arbitrator has considered DOD's mission but have found that the language of the collective bargaining agreement prevails? Is this tantamount to saying that an arbitrator's or Board's determination that the bargained for provisions of a collective bargaining agreement are inapplicable if they interfere with DOD's mission? Must arbitrator defer to DOD's claim that it cannot comply with CBA because of its mission? The clause, as written, has no meaning, or perhaps too many meanings. It should be eliminated from the proposed rule. Sincerely, /s/ ******************************************************************* Only the individual sender is responsible for the content of the message, and the message does not necessarily reflect the position or policy of the National Education Association or its affiliates.