| Comment Number: | EM-023223 |
| Received: | 3/15/2005 10:41:54 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: I write 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. 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, but there are no assurances in the regulations that they will be given pro-rated amounts towards their next step or career ladder promotion. Making classifications in broad categories can be very dangerous. Although on paper the thought that two mechanics are the same sounds good, in practice it is not necessarily true. A HUMMWV motor transport mechanic would probably not be able to (without proper training, supervision and experience) be able to become an aircraft mechanic and vice versa. I understand that this is an example to the extreme, but it can happen. People will specialize in their jobs. When you are assigned to a particular job for a long period of time, you have the opportunity to learn the rules and requirements for each task required. This is what builds a strong knowledge base and expertise. Expectations have to be reasonable. They should not be so narrow as to make success unobtainable. The new promotion system must be written in such a way that the next step is achievable. Subpart C ? Pay and Pay Administration ? ?? 9901.301 ? 9901.373 The proposed system does not take into account Cost Of Living pay increases. If the ?Pay Banding? does not change annually to keep pace with inflation, within five years, ALL D.O.D. employees will be grossly underpaid compared to the private sector. Taking this into account, D.O.D. will not be able to keep the highly trained and dedicated employees that it currently has and it will loose them to the private sector. ?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. Setting and adjusting rate ranges ? 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 ? 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. Employees with an unacceptable rating will not receive a pay increase. Performance payouts ? The proposed Performance Pay increases are not to be budgeted with the approval/passing of the D.O.D. budget by the House and Senate and signed by the President. Where will the money to fund any pay increases come from? Because of proposed limits on Performance Pay ?Bonuses? any monies paid out that are not in the form of an hourly pay increase will do nothing in the long term for employees. ARE Employees expected to be able to retire in 10, 20 or 30 years without any substantial pay increase. What will one dollar be worth at that time. We are currently living in a time that every time the price of gas changes we feel it at the grocery store. How much will my retirement be worth in 14 years if I do not have pay increases that at least keep up with inflation? 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 ? some employees can 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. The second employee will get a bigger pay increase based solely on that supervisor?s decision 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. Setting pay ? Management will be able to set the starting rate of pay anywhere in a band for new hires, promotions, reassignments, etc. The employees are expected to trust completely in management to make unbiased decisions regarding employee performance. Who is watching the watch dogs? Because of the human factor, there must be rules and laws in place that binds management to do what is right. The proposed new system completely discards all performance that is more than one year old. Is D.O.D. telling us that experience no longer counts for anything? Longevity pay is not a pay increase for nothing? it is a pay increase for experience. Experience does and should count for something? even if it only a 1.5 to 3.5 annual cost of living pay increase or a scheduled step increase every 2 to 3 years. 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. These rules may not necessarily comply with other state and federal pay regulations. 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. Many first line supervisors are Active Duty members of the military. Because many of the military members do not receive supervisor training, or are not able to switch between being a military supervisor and a civilian supervisor, they fall short on communicating expectations to civilian employees. They expect that an assigned task will be completed without any questions being asked, (even if the task is wrong). Civilians are not subject to the U.C.M.J. (Uniform Code of Military Justice) and many Military supervisors do not understand that. Some rules do not and should not apply to civilians. Civilians are placed in positions along side military members in many jobs that require continuity (corporate memory), because military members move every 2 to 4 years, the wheel is constantly being re-invented. The military supervisors often do not trust their civilian counter-parts, nor do they remember that many of them were former or retired members of their own ranks (except when it is convenient). Challenging a rating ? There will be an internal DoD process, not a negotiated grievance process, to challenge a performance appraisal rating. And there will be no process, not even an internal one, for challenging a performance payout. 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. There should be a method of challenging an adverse or even an average rating from a supervisor. If an entire year of excellent or outstanding performance is being over shadowed by a single incident, it needs to be weighed accordingly. Something needs to be in place to insure that all ratings are fair and accurate. The Union or other entity that is not aligned to management should be able to represent an employee in such a case. 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. 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. NSPS intends for management to Set and communicate performance expectations. In this subpart, NSPS states that there is no set probationary period. My understanding of this is that if you work 29 years 11 months and 29 days under this proposed system on that last day, you can be fired for not meeting your probationary expectations and loose everything. How is this going to help employee performance if every employee is constantly walking on egg shells and afraid to do anything more than what is required and expressed in writing to do with their job? 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. Placement rights (?Bump? and ?Retreat?) are significantly reduced. As I stated earlier, Experience (tenure/seniority) should count for something. Experience and knowledge have a value to every orginazation. Somebody has to be able to show new employees the hows, whys and whens of every job. 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. The Department may disallow a representative of the employee?s choice by the mere assertion that a conflict of interest may exist, that security may be compromised, or that the employee?s chosen representative cannot be released because it would cost too much or his or her duties cannot be interrupted. Subpart H ? Appeals ? ?? 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. Neither party to an appeal may unilaterally file for additional time to. Either party can ask MSPB to limit discovery. Interrogatories, depositions, and other means for gathering facts will be limited. 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? an 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. The right of an appeal is firm in our judicial system. It is what makes sure that both parties were fairly represented and that every parties rights were adhered to. If we take away or reduce the appeals process then we might as well lower our flag and put the iron curtain around our borders since we would be turning the government into an autocraticy. The United States Government is ?Of the People, For the People and By the People?, No one person or organization should reign supreme power over another without appeal. 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. NSPS is attempting to turn government employment into a large sweat shop. Employees should have the rights to organize and collectively represent themselves. Many of the advances in Occupational Safety, Pay and Employee Rights have been brought about by these collective bargaining processes. That is one of the things that make this country what it is. It has already been shown that communism does not work. If we are to learn anything from history, capitalism in its most true form (much like a monarchy) is also a very cruel task master where the very few at the top succeed only on the merits of the many who are taken advantage of. There has to be a balance to keep both sides in check. 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. If the proposed NSPS system is implemented, this board will be the most overworked body within the United States. There will not be enough time in the day, days in the week, nor weeks in the year for them to negotiate the number of Unfair Labor issues that will be presented. 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. 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. Managers are suppose to have the knowledge and experience to provide input when changes occur. If they are not allowed to provide input and feedback, then their experience and knowledge is being wasted and lost. If it is not to be used, then the positions may as well be eliminated. I do not believe that is the intent of NSPS. Effective communications cannot be substituted. All parties interested and disinterested should be able to express concerns of bargaining. Changing working conditions will not be very effective if in doing so, employees are unable to be at work or perform the work. 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. In America, we have the right to representation. This includes whomever we request, even Union representation. This right is guaranteed under our constitution. NSPS is attempting to take away the D.O.D. employees right to ?Life, Liberty and the Pursuit of Happiness? under the guise of National Security. The security the NSPS is promising cannot be delivered, and they expect us to pay the ultimate cost of freedom for it. 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. Union representatives should have the ability to express themselves in what ever method that they have available to them as long as it does not do physical injury to management. It is hoped that bargaining will not have to come to extremes, but sometimes it may be the only way. Remember, this country was founded on the principle that fairness is for all people, not just a chosen few. 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. If all parties are not privy to all pertinent information, then an informed agreement cannot be reached. This allows management to have an unfair advantage. Fairness applies to both management and employees and their representatives. 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. An unfair practice is still unfair even if you change the rules. The current rules and regulations have come about from collective bargaining for what is right, fair and equitable for all. These rules should not be scrapped! 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. 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. A bargaining decision made by a single entity is not bargaining. If NSPS wants to make this a dictatorship, then they should call it that. It would still be wrong and unfair. It seems more and more that the proposed NSPS system was not very long thought out, and will require much arbitration between D.O.D. and Collective Bargaining Representatives to reach an reasonable solution for all. Collective bargaining above the level of recognition ? 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. As I stated earlier, ALL interested parties should be able to be represented with collective bargaining. If the Secretary is excluding representation, or choosing which representatives are to be allowed to be involved, then there is no true and fair representation! Negotiation impasses ? If the Department and exclusive representative are unable to reach an agreement either party may submit the disputed issues to the Board for resolution. The Board may take whatever action is necessary to resolve the impasse. Grievance procedures - Collective bargaining agreements will provide grievance and arbitration procedures and will be the only authorized procedure for resolving issues under its exclusive coverage. NSPS excludes performance appraisal ratings and mandatory removal offenses from the scope of the grievance procedure. Employees should be able to be represented in all matters. Without representation, the fairness of any action comes into question. Exceptions to arbitration awards ? Will be filed with the internal Board. Among other reasons, exceptions may be filed based on the arbitrator?s failure to properly consider the Department?s national security mission or to comply with applicable NSPS regulations and DoD issuances. Official time ? These provisions remain essentially the same, although we can expect tougher negotiations and an unsympathetic Board to resolve impasses. Without being able to freely utilize Official time to research issues and represent employees, Union representatives will not be able to adequately represent an individual or individuals. Union representatives must be able to determine the merit of a case by using Official Time, this is in the best interest of both management and employees. There are many issues that NSPS address that it proposes to change. Many of the current D.O.D. Civil Service rules are in dire need of being updated. This does not mean that D.O.D. employees should be treated any different than any other FEDERAL EMPLOYEES. The U.S. Tax Payer is still our boss, shareholder and customer; And every person who is a FEDERAL EMPLOYEE is also a U.S. TAX PAYER! In implementing changes to the system, I only hope that legal and moral issues are taken into account. The fairness of the employees, supervisors, managers and the mission of the organization need to be carefully weighed. If we make our mission but loose all of our staff in doing so, what have we gained. If we sacrifice our freedom because the word ?Security? is mentioned, how do we know we are secure? Our freedom is what makes us secure. Our freedom to question perceived wrongs and our freedom to do what is right! Sincerely,