| Comment Number: | EM-023198 |
| Received: | 3/15/2005 7:04:06 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: My Name and am the President of AFGE Local 1834 in Fairbanks, Alaska Working at Fort Wainright Army Post as a Lead firefighter Proudly serving the taxpayers and military personnel for over 23 years. I have been a sounding board to many myths that fellow employees have been exposed to. Here is a partial list of them and after doing extensive studying here is my comments on each and how they affect the work force, the taxpayers and the national security of this great country. MYTH. NSPS does nothing to help with national security. FACT Not true. The mission of DoD is national security, and civilians play a vital role in supporting that mission. NSPS provides the Department the tools necessary to recruit, retain, and manage the civilian workforce to accomplish our critical mission in a more effective and efficient manner. NSPS will also provide flexibilities so we can reduce our reliance on the military to perform jobs that civilians can and should perform, freeing up the military to perform its war fighting duties. NSPS is a mission-driven, performance-based system that motivates, recognizes, and rewards excellence, which will result in an overall improvement to mission effectiveness, and enhanced national security. This is critical in the global war on terrorism. TRUTH 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, the overwhelming experience in the federal sector with pay for performance plans has been a dismal failure. That includes both the historical efforts and the current efforts under the current administrations ?management flexibilities? just ask the employees of the Transportation Security Agency, or the managers at NASA. NSPS is not necessary to reduce the dependence on the military performing work that could be done by civilians. The directives from Congress to DoD to make that happen date back to the Clinton administration, all that is necessary is for DoD to make the conversions. It is happening where DoD can move those positions directly to contractor provided services rather than having the work done by Civil Service ? just ask DoD about how quickly they were able to move security services to the private sector once they found a no-bid option to do it ? are there contractors at your gates? Do you feel motivated? Do you have confidence that the same management you have today will reward you appropriately tomorrow, recognizing your service and rewarding your excellence? Haven?t they done that to this point? The provisions to do so are already in the existing laws governing personnel. And if you have been fortunate enough to have a supervisor who rewards your efforts, will your supervisor have the funds available to reward you in the future? Look at your coworkers and decide which coworker is going to get a reduction in pay so you can get a larger raise! 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. What is critical in the global war on terrorism is the UNITED state we are in, not in a state of independent action. 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 (9901.910, 917, 920). MYTH Under NSPS, DoD civilians can be assigned anywhere in the world, even to a war zone, with little or no notice. FACT Currently DoD has the authority to reassign employees, including reassignment to overseas locations, when necessary to support the mission. We do this under today?s system. This authority is unaffected by NSPS. One of the goals of NSPS is to reduce its reliance on military to perform jobs that could be performed by civilians. Truth: Yes DoD does have the authority to assign some employees to deployment in support of the mission. These positions are designated by DoD, and employees know when they are hired into the position that it is a condition of employment. And oh, by the way, those positions are exempted from being contracted out, but the NSPS does away with that little job security feature ? by making all DoD positions deployable. So the authority is not unaffected, it is expanded! Under the new rules the Managements Rights clause is greatly expanded, without bargaining, and in fact prohibiting bargaining in this case! 9901.910(a)?nothing in this subpart may affect the authority of management to?(2)?to assign employees to meet any operational demand. (b)Management is PROHIBITED from bargaining over exercising the authorities in (a)(1) and (2). This is a change in the law, it removes a protection of your rights. And once again, all it takes for the DoD to reduce its reliance on military performing jobs that could be done by civilians is to apply the old Nike saying: Just Do It. BENEFITS (HOW YOUR RECEIPT OF BENEFITS AFFECTS NATIONAL SECURITY) MYTH I will lose my benefits under NSPS. FACT NSPS will not affect rules governing retirement benefits or eligibility, health and life insurance, leave, attendance, and other similar benefits. Truth: 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, but you know they only want to take you higher. Subpart C 9901.300?s The whole process of setting your pay has changed, with performance being the highest rewarded of all the pay provisions. You remember the multi-level rating system DoD had in place a few years ago ? the one they said was unmanageable and wanted to get rid of, and did ? in favor of a manageable pass/fail system? Well you will be comforted to know that those same folks who couldn?t manage it then, are now singing its praises. 9901.409(a) ? of course you have to wait for the ?implementing issuances? to find out the rest of the story. One thing we do know now ? you won?t be able to file a grievance over your performance rating 9901.922(c)(4). But not to worry, DoD will develop through ?implementing issuances? a method to appeal your performance rating 9901.409(g), but whatever the outcome of that appeal, you cannot challenge the payout determination! Eligibility for retirement ? again the formula stays the same ? but your ability to satisfy the criteria, that is to stay long in the system long enough to earn a meaningful benefit ? is now a decision that management has greater control over than you do ? and it doesn?t have anything to do with whether there is work available or not ? but how your boss evaluates your attitude and behavior (you know what those are and how they are measured). 9901.406(b) With the changes DoD is making in RIF, your opportunity to retire may be greatly enhanced, since they will now be able to do ?designer? RIF?s with an area of competition custom designed just to meet your needs. 9901.605 BUT DON?T WORRY, YOUR BENEFITS AREN?T AFFECTED! MYTH NSPS eliminates veterans? preference for reduction in force (RIF) and hiring. FACT NSPS preserves veterans? preference. DoD is committed to the principles of veterans? preference; under NSPS, veterans continue to receive preference for both hiring and RIF. Truth Hiring for competitive positions is in 9901.515 and preserves veterans? preference, but take a look at 9901.511(c)- if DoD decides there is a severe shortage or critical need for particular occupations, pay bands, career groups, or geographic locations they may make appointments without regard to 9901.515! No veterans? preference in that scenario. RIF is another area that preserves veterans preference, that is veterans are placed on the retention list ahead of other employees 9901.607. But the new ?Workforce Shaping? regulations allow for ?designer? RIFS reducing the competitive area 9901.605 and competitive group 9901.606 and introducing a new element ?no undue interruption would result? from the displacement 9901.608(a)(1)(ii) and retention factors include ?such other factors as the Secretary considers necessary and appropriate to rank employees?? 9901.603 and the retreating element of 5 CFR 351.701 ? retreating to a position formerly held by the employee, is not brought forward in the regulations. So what this allows is a much smaller target to be established in RIF, and although veterans? preference is intact, it of course only applies to the competition inside of the target group. MYTH Seniority and veterans? preference will no longer count in the event of a reduction in force (RIF). FACT Not true. Veterans? preference eligibles are still retained over employees without veterans? preference in RIF. Also, seniority continues to be a factor in RIF. However, because NSPS is a performance-based system, the proposed regulations give greater weight to performance in RIF retention by placing performance ahead of length of service. Employees competing for retention under RIF who have the same performance ratings will be retained based on length of service. Truth: So that new employee hired last year, you know the whiz kid who looks so good on paper but has no history with the agency. The one who left the military for the civil service job, or the one who was hired under the ?flexibilities? granted under the new regulations, the one they want soooo badly, and of course who was given the highest possible performance rating (only one rating), well guess what ? unless all of your performance ratings were as high every year as his one year rating ? that?s right he goes ahead of you on the retention list. Since the fewer ratings of record you have increases the odds of having a higher average rating of record, this process practically assures that the younger (oops, I meant those employees with less seniority) employees will be retained and the older (oops, I meant those employees with more seniority) will be released. Now that?s fair! MYTH I will lose my job security and there will be layoffs. FACT No jobs will be eliminated because of NSPS. In fact, under NSPS there may be more opportunities for civilians as military positions are converted to civilian. By easing the administrative burden routinely required by the current system, managers will turn to civilians first when assigning vital tasks. Truth: NSPS by itself does not direct that there be layoffs. The reality will more likely be that as employees become dissatisfied with their pay, and the ability to have some input on their day to day working conditions, and the lack of due process in contesting the actions of the employer, they may seek employment in other federal agencies or leave civil service altogether. The impact to DoD will be the loss of the institutional knowledge which is uniquely carried by the civil service workforce. The intimate and historical knowledge of the industrial complex of the physical operation, and frankly the administrative operation of DoD facilities will be lost. Remember it is the civil service component that is the continuous line in the operation of DoD facilities, not the military component which comes and goes on a rotational basis, and not the contractor workforce since there is no assurance that contracted out work will remain with the same contractor, or contractor?s employees. As the workforce is ?reshaped? through this poorly thought out, arbitrary and capricious set of rules, the stewards of good government ? that is the current civil service workforce ? will be removed as the eyes and ears of the taxpaying public, and the mouthpiece of waste, fraud and abuse within DoD. This will ultimately allow DoD to complete its transformation to a contractor provided support system for the military defense of our country. On the point of turning to civilians when first assigning tasks, the DoD has made little or no effort to utilize an expansion of its civil service workforce to undertake ?new? work. The latest in many example of this is contracting out of security positions. At the same time the Army was by hit and miss expanding the Dept. of Army police functions with civil servants to replace the military police, DoD chose to go directly to a contracted workforce for the security positions ? not to civil service, are there Security Company employees at your gate, or civil servants. So when DoD says that the NSPS will ease the administrative burden and managers will turn to civilians first when assigning tasks, be assured they are talking about contracted private sector civilians, not civil servants. PAY (HOW YOUR PAY AFFECTS NATIONAL SECURITY) MYTH I will lose pay under NSPS and I won?t get credit for the time I?ve already spent waiting for my next within grade increase. FACT Employees will not lose pay upon conversion to NSPS. Employees will be converted into NSPS at their current salary. In many cases, employees will receive a salary increase equal to the amount they have earned towards their next within grade increase (this is known as the ?WGI buy-in?). Truth: 9901.300 is the regulatory series on pay and pay administration. 9901.373 DoD does promise to place employees into a NSPS pay band with their initial pay being the same, but the ?WIGI Buyout? which is discussed on pages 7573 & 74 of the introduction to the regulations does not appear in the proposed regulations. Must be another of those issues DoD will take care of with an ?implementing issuance?. Charles S. Abell, principal deputy under secretary of defense for personnel says that DoD has over 20 years of experience with pay for performance systems. Seems like DoD should be able to fully inform its employees of the provisions of that system before placing them in it. 9901.311 Of more importance than the initial pay under NSPS is the employee pay in the future. 9901.313 says that the amount allocated for compensation (basic pay and any geographic adjustment)of the entire DoD workforce through 2008 will be the same as if there had been no departure from Title 5. What it does not say, and what is identified in the details of the pay system, is that those funds will not be allocated to the individual employee, but rather the total of that compensation (what would have been your future compensation)will be used to fund the new system. No new money is added to the pay system, so the only way for these promises of being paid more for your performance can happen is if DoD robs from Paula to pay Paul. 9901.321, .322, and .323 speak about setting the ranges of pay within bands, adjusting those rates, and eligibility to receive an increase to a band. Sounds like a pay raise doesn?t it? Well read .322 closely, it tells you DoD (not Congress) in its sole and exclusive discretion may set and adjust rates depending on a variety of factors including ?availability of funds?. Any other issues in DoD competing for funding? Where else does your future pay go? .342(b) performance pay pools! What are they? Well a future implementing issuance will define that! You will be comforted to know that after 2008, DoD will provide a formula (of course in a future implementing issuance) that will provide the funds available for employee compensation. 9901.313(b). 9901.341, .342, .343, and .344 speak to the pay for performance concepts, as we have already discussed this is a system that is wholly built on a subjective, arbitrary and capricious foundation, and to add insult to the injury, exempted from the negotiated grievance procedure [9901.922(c)(4)]in favor of an as yet undefined internal DoD process. 9901.409 ?(a) implementing issuance will establish a multi-level rating system (back to the 5 step system DoD said was unmanageable and abandoned in favor of pass/fail), (b)(1) rating of record will be basis for pay, (g)may only be challenged by reconsideration procedure (undefined) provided by implementing issuance ? a payout determination (your PAY) will not be subject to reconsideration process. Fair, and due process!??? 9901.409(d) performance is rewarded with a share. Share defined? No ? future issuance. MYTH There will be no locality pay under NSPS. FACT The proposed NSPS pay system includes a locality-based component of pay called a ?local market supplement? that is paid 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. Employees will be entitled to increases to the local market supplement, unless they are performing at an unacceptable level. Truth: Employees are not ENTITLED to anything, this is nothing like the locality pay you have now. It may now be based on both a geographic criteria, as well as an occupational criteria. 9901.331 ? pay MAY be supplemented in APPROPRIATE circumstances; .332 different amounts of local supplement to different career groups, different occupations or different pay bands WITHIN the same career group or local market area. How is the local market supplement rate set? 9901.333 ? at the sole and exclusive discretion of DoD ? not Congress, not even the President. In determining the amount DoD will consider mission requirements,? availability of funds ?? any competition in DoD for funds? Also DoD may consider the ?allowances? employees receive under 5 USC 59, which includes many elements significant to an employee compensation, including non foreign area COLA (AK, HI, VI, PR, GU, etc) when setting the local market supplement. DoD decides when supplemental rates will be effective, but will review for ?possible? adjustments annually .333(b). And of course you can only get the supplemental pay if you are deemed ?acceptable? .334(a),(b). MYTH NSPS is just a way to freeze the pay of DoD civilians, since we?re no longer entitled to the automatic January pay increase or within-grade increases. FACT The annual January pay increase, as we know it now, will change. The proposed pay rules provide for periodic ?rate range? adjustments, to adjust the minimum and/or maximum rate of a pay band. When a minimum rate of a pay band is adjusted upward, employees will receive an equivalent increase. There are no ?steps,? similar to the GS system, in a pay banding system. Instead, pay increases and/or performance bonuses are based primarily on your performance rating. Unacceptable performers are not eligible for pay increases under the proposed system. Truth: 9901.322 speaks to setting and adjusting rate ranges for the pay bands, (a) states that it is within the sole and exclusive discretion of DoD, whether; (b)when, and by how much to adjust the rates of the pay bands. The same considerations are applicable as discussed earlier, i.e., mission requirements, labor market conditions, availability of funds, pay received by employees of other federal agencies, and ANY OTHER relevant factors. Labor market conditions is among the many undefined terms. DoD will also be allowed to establish and adjust different rate ranges and adjustments to pay bands ? i.e., not all bands would receive the same adjustment (c) and DoD may adjust the top rate of the band differently from the bottom rate of the band (d). There is no consistency, or any resemblance of a pay ?system? under the new regulations. MYTH Under NSPS, funds for salaries and bonuses will no longer be certain. FACT DoD is committed to ensuring civilian compensation is protected. In fact, the law requires that the aggregate amount of money allocated for civilian compensation for organizations under NSPS cannot be less than the amount that would have been allocated under the existing system. Under NSPS, the overall amount of money that would have been used for the annual January pay adjustment, within grade increases, quality step increases, and similar payments, will be used for civilian pay, and those funds will be protected. However, the proposed NSPS pay system will distribute those funds based primarily on performance Truth: 9901.313 (a) for fiscal years 2004-2008 the aggregate amount of money that would otherwise have been paid to individual employees will be made available for redistribution through the various pay manipulations available to DoD ? pay bands, pay for performance, supplemental adjustments, pay pools, extraordinary pay increases (EPI)- I want to meet the first non management person that gets one of these! MYTH My supervisor will not be prepared and equipped to fairly and objectively rate my performance, and will not be held accountable for exercising his responsibility under NSPS. FACT Supervisors and managers will have an important role in determining performance-based pay increases. The flexibilities proposed in the NSPS regulations bring with them an increased need for accountability. This includes employee accountability for performance, as well as supervisory and managerial accountability for the proper exercise of the authorities of NSPS. Extensive training will be given to supervisors and managers, both military and civilian. Training will focus on improving skills needed for effective performance management: setting clear expectations; communicating with employees; and linking individual expectations to the goals and objectives of the organization. Supervisors and managers will be held accountable for how effectively they use the tools provided by NSPS. They will also be subject to the pay and performance provisions of the system, and their pay will be affected by how well they perform their duties as supervisors and managers. Truth: Yes, a very important role for managers and supervisors, and the employee?s ability to question the performance of the supervisor or manager in exercising that role has been removed from the grievance procedure 9901.922(c)(4), in favor of an internal review procedure DoD will develope ? in a future implementing issuance. The performance payout decision will not be subject to reconsideration 9901.409(g). 9901.409 ?(a) implementing issuance will establish a multi-level rating system (back to the 5 step system DoD said was unmanageable and abandoned in favor of pass/fail. Now we all know how well management was trained in the use of that system, and we know that management really doesn?t have anything else to do but attend training on personnel systems, just ask one of them how much training they?ve received on personnel matters in the past ? like the class they took on the local union contract! LABOR-MANAGEMENT RELATIONS (HOW YOUR RIGHT TO FORM AND PARTICPATE IN A UNION AFFECTS NATIONAL SECURITY ? NEVER HAS NEVER WILL) MYTH Unions have had no involvement in developing NSPS. FACT The proposed NSPS regulations are the product of a broad-based, collaborative effort across the Department that began in 2004. This included a number of meetings with employee representatives involving extensive and fruitful discussions on potential options for the design of the system. In several areas, the proposed regulations reflect the interests and concerns that were voiced during those consultation sessions. We also held numerous focus groups and town hall meetings, many of which included local union involvement, to gather input and feedback on the system design. Now that we have published our proposed regulations, the next step in this process is to gather comments and recommendations on the proposed regulations, and engage in more discussions and dialogue with employee representatives as called for in the law authorizing NSPS. Truth: I challenge any DoD official to give a real example of where collective bargaining rights have prevented the exercise of the mission of the Department or compromised National Security! What world have these people been living in? They apparently don?t recall that they had to start the process over with a new team because they were so arrogant and uncommunicative in the first meetings. The second reincarnation of DoD?s ?broad based? collaborative effort has resulted in the a union coalition filing a lawsuit over the failure of DoD to comply with the provisions of the law. The American Federation of Government Employees (AFGE), together with the Association of Civilian Technicians (ACT), the International Association of Firefighters (IAF), the International Brotherhood of Teamsters, the International Federation of Professional & Technical Engineers (IFPTE), the Laborers International Union of North America (LIU), the Metal Trades Department of the AFL-CIO, the National Association of Government Employees (NAGE), the National Federation of Federal Employees (NFFE), and the United Power Trades Organization (UPTO) filed their suit in the U.S. District Court of the District of Columbia. In defiance of the United States Congress, the Department of Defense refused to consult with the unions that represent the department?s employees, as called for in the defense authorization legislation that sanctioned the creation of the new personnel system. The unions claim that in issuing its proposed rule changes without their involvement in the system?s design, both DoD and OPM have violated section 9902(m) of the Defense Authorization Act for fiscal 2004. The numerous town hall meetings were so shoddy that some employees only opportunity was to watch via video conference, with no opportunity to ask questions of presentations that were being held hundreds of miles away. DoD Agencies routinely denied employee unions the opportunity to make presentations at these focus group and town hall meetings resulting in the filing of several Unfair Labor Practices as violations of 5 USC Ch 71 provisions for formal meetings. MYTH NSPS will do away with bargaining units and employee unions. FACT Not true. 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. Truth: As with many of the changes of NSPS, whether it is in the area of employee rights or the rewriting of the Labor Relations rules (union and management rights), there is an apparent attempt to escape the rule of law that has been developed in the United States over the past century. Otherwise why would DoD exempt itself from these ruling authorities? The law does require collective bargaining to be maintained 5 USC 9902(b)(4) ensure that employees may organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions which affect them, subject to the provisions of this chapter and any exclusion from coverage or limitation on negotiability established pursuant to law; But it is greatly changed under the provisions of NSPS and not for the employee?s benefit; 5 USC 9902 (m)(7) Nothing in this section, including the authority provided to waive, modify, or otherwise affect provisions of law not listed in subsections (b) and (c) as nonwaivable, shall be construed to expand the scope of bargaining under chapter 71 or this subsection with respect to any provision of this title that may be waived, modified, or otherwise affected under this section. Starting with that kind of good faith negotiations is it any wonder that DoD produced such a broad-based, collaborative effort involving extensive and fruitful discussions on potential options for the design of the system? The regulations regarding collective bargaining are found in 9901.900?s. Some of the changes: The law governing the rights of employee unions in the relationship with DoD is 5 USC Chapter 71. That law is enforced by the independent Federal Labor Relations Agency. The NSPS eliminates the oversight of the FLRA in favor of a DoD appointed Board ? 9901.907 9901.908(a) Some of the things the NSLRB would have oversight of: (1)Unfair Labor Practices, that?s right now the Union can ask DoD if DoD violated the law. And DoD can ask DoD if the Union committed and Unfair Labor Practice. I wonder who will win? (2) Decide what DoD is required to bargain over with the Union (3) Decide what information DoD is required to provide to the Union for bargaining (and employee appeals). (4) Resolve exceptions to arbitration awards 9901.923 with the same procedures as an MSPB appeal in 9901.807(k)(8-10). Essentially giving DoD the right to return a decision of an Merit Systems Protection Board Administrative Judge or an arbitrator back to the MSPB AJ or Arbitrator to change the decision, or DoD may issue a final decision of their own and determine which decisions will set precedent. 807(k)(8)(iii)(A)(B)(C) (5) Decide when impasses have been reached in negotiations, and resolve the impasse. 9901.910 As if all of that is not enough, DoD also expanded managements rights ? which was already the strongest set of managements rights of any employer in the United States prior to this! DoD is soooo interested in the input of their employees, both management and bargaining unit, that DoD decided to make it illegal for those managers to negotiate over issues which they previously had authority to bargain over 910(a)(1), (2) & (b). That?s right, more of that ?transparent?, ?collaborative?, ?clear?, and ?accountable? process leading to a ?credible and trusted system?. THEY DON?T EVEN TRUST THEMSELVES! (With good reason!) Collective bargaining by definition requires that the parties negotiate. Negotiation infers that an agreement must be reached ? it is required in the federal sector where strikes are prohibited. DoD has replaced negotiation with consultation in many aspects of the LMR 9901.910(c). ?Consultation does not require that the parties reach agreement on any covered matter.? 9901.910(g), (h)- formerly when DoD exercised a management right, they were required in most cases to bargain PRIOR to implementing the change. Now they will implement the changes, and bargain/consult AFTER. 9901.912(b)(3), (4) DoD has already shown its intention to depart from the rule of law. Here they expand the scope of employees who previously had the right to union representation, as decided by the Federal Labor Relations Agency. 9901.914(a)(2)(i) the Union?s right to be present at ?formal meetings? is restricted beyond the scope of the current interpretation of law. 9901.914(c), the Union?s right to information is restricted to a greater degree than under the current interpretation of law. An employee who acts as representative of the employees no longer has the same level of protection to engage in robust debate 9901.914(a)(4). Makes you want to get in there and help with that collaborative process, don?t it! 9901.916 (c) Notwithstanding paragraph (b)(7)of this section, informational picketing which does not interfere with the Department?s operations will not be considered an unfair labor practice. GET OUT THE BASEBALL BATS AND GARBAGE CAN LIDS, WE?RE GONNA MAKE SOME NOISE! 9901.905 Contracts are subject to change by DoD ?implementing issuances? NOW WE KNOW WHY DoD HAS CONSTRUCTED A TROJAN HORSE OF REGULATIONS ? to be completed by future implementing issuances! 9901.919 National level bargaining- at the sole and exclusive discretion of the Secretary of Defense, without review, to decide at what level negotiations will be conducted. So collective bargaining is preserved ? but not for YOUR LOCAL! 919(b)(5) ? the result of the national level bargaining will not be subject to ratification ? SO MUCH FOR THESE COMPASIONATE CONSERVATIVES BELIEVING IN DEMOCRACY! EMPLOYEE RIGHTS (HOW YOUR RIGHTS AS AN EMPLOYEE AFFECT NATIONAL SECURITY) MYTH Employees will lose their fundamental rights to grieve or appeal unfair decisions or adverse actions. FACT NSPS does not change critical employee rights such as merit systems principles, due process, whistleblower protections, and protection against prohibited discrimination and personnel practices. There will continue to be avenues for employees to seek redress. For bargaining unit employees, negotiated grievance procedures will remain part of the process, and other employees will continue to have access to administrative grievance procedures, as well as formal appeals processes for adverse actions. TRUTH: 9901.922(c)(4) You can?t grieve the decision on your performance, which is going to decide whether or not you get an increase in pay and your ability to keep your job! (c)(5) You can?t grieve a removal taken under mandatory removal authority ? which is not defined! You can?t take the decision to MSPB, you can?t take the decision to court. Now that?s what I call due process! And by the way DoD - mandatory removal authority is 9901.712, not 717. Isn?t getting FIRED an adverse action? And for all those issues that you can take to the MSPB or to Arbitration ? guess what, DoD gets to override the decision basically at their will 9901.807(k)(8-10). And as another added bonus, you don?t get put back to work, or get your back pay until DoD has exhausted all their appeals ? and your bank account! 9901.807(c)(2). Formal appeal processes for adverse actions ? yeah that result in appeal to the now compromised decisions of the MSPB and an arbitration system with the final and binding decision in the hands of DoD. Merit systems principles are enforced by the Merit Systems Protection Board. DoD knows they cannot prevail in the face of established precedence in law, so they have specifically exempted themselves from the rule of law, and the procedures followed by the MSPB. 9901.807(b)(1). Those ?avenues for employees to seek redress? are looking more like dark dead end alleyways in a bad neighborhood than the brightly lit boulevards of mainstreet American Justice! MYTH Under NSPS, there is no process for employees to challenge their performance rating. FACT DoD is developing a process that will allow employees to request reconsideration of their rating to a higher authority. This process will apply to all employees under NSPS. Under current law, employees in the same organization are often subject to different procedures and avenues when challenging performance ratings. This sometimes results in inconsistent decisions. Because of the importance of the performance rating process and its impact on pay, DoD will ensure that every employee has the same opportunity to seek appropriate redress. Truth: The myth is the truth! It doesn?t exist yet! A future implementing issuance will give you some type of redress. Employees subject to different procedures means that where there are unions, the unions are effective in beating DoD and their poor performance in administering the old performance rating procedures. Sure can?t have that happening under their new highly trained management! MYTH Under NSPS, there is no due process for employees affected by an adverse action. FACT Not true. The proposed regulations preserve due process rights for employees who are subject to an adverse action (e.g., removal, suspension of more than 14 days, reduction in pay or pay band level). In all such cases, employees continue to have the right to notice of proposed action, the right to reply, the right to representation, and the right to appeal that action. The rule changes proposed in the regulations seek to streamline this process so that workplace issues are resolved quickly, while ensuring due process, recognizing the need for workplace accountability, and providing efficient tools for dealing with performance and conduct issues. Truth: As discussed earlier. The beginning of the process looks similar, with less time for the employee to appeal. But the main danger here is in where the employee has to take the appeal, and the unfair restrictions that DoD places on the decisions of the independent MSPB and independent Arbitrators. You gotta give it to DoD, cause it ain?t easy establishing a dictatorship in a democracy! MYTH The proposed appeal system is not an impartial process. FACT Under NSPS, employees retain the right to appeal to a third party in adverse action cases. The proposed regulations retain Merit Systems Protection Board (MSPB) administrative judges as the initial adjudicators of employee appeals of adverse actions. Although the proposed regulations provide for a Departmental review of those initial administrative judge decisions, employees retain the right to appeal to the full MSPB to review a final Department decision. Truth: You did see who the FINAL decision was left to, right? ^^^^ As DoD employees you deserve better than the low lifes who have proposed this ?system? are putting forward. Over 40% of you are VETERANS, who have an obvious belief in protecting the foundations of freedom. The next largest percentage of you are spouses of current military or retired military, or veterans, you too have already given in large measure to secure the promise of America for future generations. And it is my guess that most of the remainder of you who work in civil service in the DoD are proud of the work you do ? and you should be. You are the cornerstone of the most effective and efficient military in the world. You are the nations representatives in a government of the people, BY THE PEOPLE, and for the people. FIGHT FOR YOUR RIGHTS ? if you lose them, your children won?t have them, it?s time to stand up and speak out - because you are THE STEWARD?s OF GOOD GOVERNMENT! I have writen to express my concerns about changes to work rules in the Department of Defense (DoD). The proposed regulations, known as the National Security Personnel System (NSPS), were printed in the Federal Register on February 14, 2005. This message will be sent to both DoD and my representatives in Congress. I have worked for DoD for years. I am angry that these proposals seem to treat the employees who help defend our country as the enemy. Most DoD employees work hard and are committed. I believe that mistreating the employees will hurt the agency?s mission. I am very upset by NSPS. This system will change the way workers are paid, evaluated, promoted, fired, scheduled, and treated. These rules would create a system in which federal managers are influenced by favoritism rather than serving the civil concerns of the American people. Annual Pay Raises Under the General Schedule and FWS, employee pay was clear. It was funded by Congress and could not be taken away. However, NSPS will take away this certainty. Salaries and bonuses are funded by DoD. In the past ? as recently as just last year ? DoD did not fund its awards program. Given the agency?s miserable record on this issue, how can employees feel confident that our salaries and bonuses will be funded in the future? ?Friend of the Supervisor? Pay System With the new patronage pay system, which DoD calls ?pay for performance,? the amount of a worker's salary will depend almost completely on the personal judgment of his or her manager. This system will force workers to compete with one another for pay raises, which will destroy teamwork, increase conflict among employees, and reward short-term outcomes. There is no guarantee that even the best workers will receive a pay raise or that the pay offered will be fair or competitive. This system will create a situation in which workers are in conflict with one another and afraid to speak out about harassment, violations of the law, and workplace safety problems. Furthermore, there will be no impartial appeal system to assure that everyone is treated fairly. Schedules and Overtime NSPS will allow managers to schedule employees to work without sufficient advance notice of schedule changes. This will make it extremely difficult for working parents to care for their children and family. It will also mean that abusive managers could harass employees with bad schedules or short notice. Overtime rotations can be canceled, which means that employees may not be able to plan adequately for childcare and other important responsibilities. Civilian Deployment Federal employees could be assigned anywhere in the world, even into a war zone, with little or no notice. I am proud to serve my country but I am also responsible for caring for my family and my personal obligations at home. We signed up for a civilian job. We did not enlist in the military. Today?s volunteer system works well. America is at war. We are fighting for democracy abroad. But the regulations are an attack on workers? basic rights. Furthermore, NSPS will divert the attention of defense workers from the soldiers? welfare to protecting themselves from abuse on the job. I urge you to force DoD to rethink this proposal. We need work rules that preserve fairness, serve the American people, and respect the rights of Defense Department workers. Sincerely,