| Comment Number: | EM-023188 |
| Received: | 3/16/2005 6:04:13 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 COMMENTS TO THE PROPOSED NATIONAL SECURITY PERSONNEL SYSTEM The current personnel system can do NSPS proposes to do. So why not just update the old system, at least you know it works. Implementing a new system based on the premise that National Security is at risk is falsehood. There is absolutely no correlation between denying civil servants their constitutional due process and national security. The new personnel system will be expensive and time consuming. The turnover in personnel alone will be costly and burdensome. Performance Based Management sounds good but in reality it may not work. Many federal employees rarely see their supervisors let a lone converse with them. Either employees are geographical separated or unable to connect with their supervisors due to schedule conflicts or lack of interest. Years ago an employee did a good job and the boss rewarded them accordingly? The process used to be a simply, fast and fair. Now we have employees working full time doing nothing but preparation for Performance Review Boards. I have personally been on Performance Review Boards and find them unfair and pre-determined. All you have to do is look at a commands award records to realize that the same employees receive awards each year. It is often the same individuals year after year. A number of Federal supervisors provide opportunities to those they favor, such as training or exposure to high profile projects. I don?t believe training is available to make supervisors behave fair and impartial. People either are or they aren?t. Also, if a supervisor does act improperly, they are protected by the Human Resource Office. Facts are stacked against employees to protect the supervisor. The problem with the supervisor is never resolved and employee morale just gets worse. Also, does anyone have a clue what this new system will cost the American taxpayer? Is there enough funding to reward performance? When the word Civilians is used, does it refer to Civil Servants or Contractors? My concern is that, this new performance system will make it easier for management to push Civil Servants into retirement and replace them with Contractors. Which I feel is not in the best interest of the government if you are talking about national security. Other Concerns: 1. Section 9901.603 in the Federal Register/Vol 70, No 29, Retention factors means 1) performance, 2) veterans? preference, 3) tenure of employment,4) length of service, and 5) such other factors as the Secretary considers necessary and appropriate to rate employees within a particular retention list. What are other factors? 2. Subpart B ? Classification ? ?? 9901.201 ? 9901.231 DoD will be able to create a pay-banding system in the future that will replace the current GS and FWS systems. Employees will convert to the new system with no reduction in their pay. Are there any assurances in the regulations that employees will be given pro-rated amounts towards their next step or career ladder promotion. 3. Subpart C ? Pay and Pay Administration ? ?? 9901.301 ? 9901.373 ?National security compensation comparability.? DoD will try to ensure that the overall amount allocated for employee compensation for fiscal years 2004 ? 2008, will not be less than the amount they would have had without NSPS. After that, DoD says it will balance the interests of employees with DoD?s need for flexibility to make changes that might affect pay levels. In other words, DoD gives itself the right to lower overall payroll amounts in the future. DoD talks only of ?overall? amounts of pay ? it makes no promise to try to protect any individual employee from harm because of NSPS. My concern is that the proposed rules do not assure that funds will be allocated fairly. If managers and top performers are awarded large pay increases, bonuses, extraordinary pay increases as defined in section 9901.344 and on 7560, and other payouts from pay pool funds, the pools could be depleted, leaving nothing for the remaining rank and file. The proposed rules allow for the possibility that my pay could be frozen even if my performance is rated satisfactory or better. Setting and adjusting rate ranges ? Under NSPS, employees will be assigned to career groups and pay bands. DoD will set the ranges of basic pay for the pay bands, using mission requirements, labor market conditions, availability of funds, pay adjustments received by employees of other Federal agencies, and other factors. DoD will adjust the rate ranges as it believes necessary. Instead of the annual increases GS and FWS employees receive, NSPS employees rated ?Acceptable? or better will get a pay increase equal to the percent the minimum rate of their band was increased. If the minimum rate does not increase, there is no increase for employees in that band. Bands can have different increases in the minimum rate, so employees in different bands in the same facility may get different annual increases. Employees rated below ?acceptable? will not receive a pay increase. Local market supplements ? DoD may set local market supplements for employees in a band, and may set different amounts for different occupations or pay bands. Will Locality pay would no longer be given equally to all employees in the same local area? DoD will decide which jobs should be paid more and which jobs it believes are already being paid higher than the local labor market. Performance payouts ?NSPS will be a pay-for-performance system, based upon individual performance, contribution, organizational performance, or a combination. NSPS will use pay pools to manage, control, and distribute performance-based pay. DoD will decide which parts of the organization and which jobs will be combined and what percentage of payroll will go into each pool. Some pay pools might have proportionally less money than others, which will mean smaller payouts for even the top performers in that pool. The money will come out of the existing payroll costs currently used for such things as within-grade increases, quality step increases, promotions, etc. DoD is not putting more money into the system My concern is that DoD is not putting more money into the system and that some employees will be able to get more than under the GS system but only if some of their fellow employees get less. DoD says that the performance payout will depend on the amount of money in the performance pay pool and the number of shares assigned to employees. Employees will receive performance appraisal ratings as they do now, but their supervisor will decide how many shares to give each one ? a particular rating does not automatically convert to a fixed number of shares. For example, a supervisor could give one excellent employee 4 shares and another excellent employee with the same rating 5 shares. My concern is that the second employee will get a bigger pay increase based solely on that supervisor?s decision. DoD may also set control points within a band that limit increases in the rate of basic pay. These are like invisible barriers that keep most employees from ever reaching the top of their band. DoD could require employees to have two years of outstanding ratings, for example, to go above a control point in their band. What a morale buster!!!!!!!!!!! Under NSPS, there will be pay pool managers responsible for the ratings and distribution of the payouts in a given pay pool. Your supervisor could recommend a rating and shares for you, but the pay pool manager might decide that a better use of the pay pool funds would be a smaller raise for you and a bigger one for someone else. Developmental positions ? The ?Entry and Developmental Band? is something like a career ladder leading to the full performance level of a job. DoD may set rules covering movement in this band, which may require employees to meet certain standardized assessment or certification points as part of a formal training or developmental program. Setting pay ? Management will be able to set the starting rate of pay anywhere in a band for new hires, promotions, reassignments, etc. Premium Pay ? DoD will issue rules regarding: Overtime pay (excluding pay subject to the FLSA); compensatory time off; Sunday, holiday, and night pay; annual premium pay for standby duty and administratively uncontrollable overtime; criminal investigator availability pay; and hazardous duty differentials. What are these new rules? 4. Subpart D ? Performance Management ? ?? 9901.401 ? 9901.409 Setting and communicating performance expectations ? DoD says it wants the flexibility to change expectations throughout the year, and 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. Expectations may include behavior; goals; objectives; competencies; contributions; work requirements, such as standard operating procedures or instructions, manuals, etc.; a particular work assignment; etc. What I have witnessed is, Supervisors using these expectations as a way to keep employees from advancing. Supervisor will put so many expectations on an employee that it becomes virtually impossible for them to ever advance. Challenging a rating ? There will be an internal DoD process, not a negotiated grievance process, to challenge a performance appraisal rating. My concern is that there not be a process, not even an internal one, for challenging a performance payout. Although supervisors will determine 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. 5. Subpart E ? Staffing and Employment ? ?? 9901.501 ? 9901.516 There will be new patronage opportunities for DOD, as it will be able to create new appointing authorities for NSPS positions that may include noncompetitive and excepted appointments that may lead to an appointment to the competitive service. DoD may establish probationary periods for NSPS positions. No criteria are included for determining the appropriate length of probationary periods ? could they be 3 years? 5 years? Probationary periods will be set for employees, not jobs so persons appointed to the same position could serve different probationary periods. It appears that Under NSPS, DoD will be able to establish in-service probationary periods for any job, not just supervisory promotions. All promotions could be considered probationary under this section. 6. Subpart F- Workforce Shaping ? ?? 9901.601 ? 9901.611 RIF ? The NSPS regulations appear to broaden the category of actions that would be considered RIFs, not just limiting them to such things as lack or funds or work. Competing employees will be ranked for retention based on tenure, veterans' preference, performance rating of record, and length of service. Performance rating is now of a greater weight than seniority. 7. Subpart G ?Adverse Actions ? ?? 9901.701 ? 9901.721 ?Mandatory Removal Offenses? (MRO), which DoD will determine, may not have a lesser penalty than termination unless the Secretary decides otherwise. Time frames ? Employees will have the right to a notice at least 15 days in advance of the proposed adverse action, a reply period of at least 10 days that will run concurrently with the notice period, and a notice of decision. Notice periods can be shortened to 5 days if the employer has reasonable cause to believe that the employee may have committed a crime for which imprisonment may be imposed. I have a concern that 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. 8. Subpart H ? Appeals ? ?? 9901.801 ? 9901.810 NSPS adopts a single standard of proof, a preponderance of the evidence, for both conduct and performance actions. Currently, managers only have to show substantial evidence, a lower standard, for performance cases. RIF?s or actions taken under DOD placement programs (including PPP) may not be appealed to the Merit Systems Protection Board (MSPB). The filing deadline for MSPB appeals is shortened from 30 to 20 days. Concerns I have are as follows: a) Neither party to an appeal may unilaterally file for additional time to. b) Either party can ask MSPB to limit discovery. Interrogatories, depositions, and other means for gathering facts will be limited. c) Only the full MSPB will be able to grant interim relief or stays of actions. MSPB and arbitrators may only mitigate (substitute a lesser penalty) if the penalty is ?wholly without justification?. This almost impossible standard. Management actions may not be overturned because DoD used the wrong words to describe the charge or performance expectation. Attorney fees may be granted only if the action was wholly without merit based on facts known to management at the time it took the action. The Department will have authority to reverse the initial MSPB decision merely by claiming impact on the Department?s national security mission, erroneous interpretation of the law, government wide rule or regulations. I have a problem with this entire paragraph. 9. Subpart I ? Labor-Management Relations ? ?? 9901.901 ? 9901.928 Impact on existing agreements ? Any provision of a collective bargaining agreement that is inconsistent with NSPS will be unenforceable once it is covered by NSPS. The union may appeal to the National Security Labor Relations Board. The union also can request to bargain to bring into conformance parts of its bargaining agreements that are negotiable, but directly affected by the parts alleged to be unenforceable. The parties will have 60 days after the effective date of coverage to complete bargaining ? it they don?t reach agreement, they may use the NSPS negotiation impasse provisions. Appealing to a hand picked group of appointees (NSLRB) is hardly in the best interest for employees. National Security Labor Relations Board (NSLRB) ? NSPS establishes the National Security Labor Relations Board (NSLRB), composed of at least three members (there can be more as long as it is an odd number) unilaterally appointed by the Secretary. The NSLRB will do many of the things currently done by the FLRA with regards to bargaining issues. The Board will handle bargaining unfair labor practices, negotiability disputes, and bargaining impasses. In addition, the NSLRB will resolve exceptions to arbitration awards and disputes over information requests. Decisions of the Board are subject to review by a court. Scope of Bargaining ? The current management rights section of the law has been expanded to include subjects that managers had been permitted to bargain ? things such as new technology and types of employees to do a job. Under NSPS, managers would be forbidden to bargain those subjects. 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. Now, for most management actions, managers will only have to bargain over arrangements if the effects are foreseeable, substantial, and significant in terms of both impact and duration on the bargaining unit. Under NSPS, managers will be forbidden to bargain over the procedures for most actions, but are supposed to consult with the union. And, even when managers unilaterally set their own procedures, they won?t have to abide by them. The regulations give management the right to determine its procedures and deviate from them. My concern is that the proposed regulations take away any requirement that managers give the union advance notice of an action; they only have to give notice at the same time they take the action. Determination of appropriate units for labor organization representation ? The FLRA will continue to determine the appropriateness of any unit. The new rules would bar from coverage, supervisors of military members, employees engaged in all kinds of personnel work, even in a purely clerical capacity, and attorney positions. Representation rights and duties ? The proposed regulations take away the right for employees subject to an examination by an agency official in connection with an investigation to request a union representative if the investigation is 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. 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. Standards of conduct for union representatives ? The proposed regulations say that union representatives are subject to the same standards of conduct as any other employee, even when they are wearing their ?union hats.? This has the potential to go well beyond stopping abusive language or conduct. The standards of conduct for employees include an expectation of deference to superiors. A union representative who bangs on the table while loudly insisting, ?NO!? is displaying behavior that might not be tolerated in a subordinate. The whole idea of protected activity is threatened here. Information requests ? Under NSPS, DoD managers will not have to disclose information if they believe that adequate alternative means exist for obtaining the information, or that proper discussion, understanding, or negotiation of a particular subject within the scope of collective bargaining is possible without the information. It is almost impossible now to get information to support a case, it will be virtually impossible now with NSPS. Unfair labor practices ? Under NSPS, it is no longer a ULP to enforce a rule or regulation that is in conflict with an existing collective bargaining agreement ? NSPS supersedes the agreements. There will be a 3-month time frame for filing unfair labor practice charges. Duty to bargain and consult ? There will be 90 days to bargain an initial collective bargaining agreement or any successor agreements and 30 days to complete midterm negotiations. If there is no agreement, either party may refer the matter to the Board for resolution. I have a concern that both Departmental and Component-wide policies, regulations, or similar issuances will bar bargaining. Multi-unit bargaining ? DoD may require that bargaining take place at a level that involves multiple units, for example, a change affecting an entire installation. Any such negotiations will be binding on all parties and will supersede all conflicting provisions of applicable collective bargaining agreements of the labor organization(s) affected by the negotiations. These negotiations will be subject to impasse resolution by the Board. They will not be subject to union ratification. Collective bargaining above the level of recognition ? I have a concern that the Secretary may decide that negotiations will occur at the DoD or Component level, above the level of exclusive recognition, and will determine which labor organization(s) will be involved. Any agreement reached in these negotiations will be binding on all subordinate bargaining units of the labor organization(s) and DoD and its Components, without regard to levels of recognition and will supersede all conflicting provisions of other collective bargaining agreements. 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. The agreement will be subject to impasse resolution by the Board, but not to ratification.