| Comment Number: | OL-10500481 |
| Received: | 2/17/2005 11:49:15 AM |
| 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:
Please consider the following comments. Subpart I – Labor-Management Relations Impact on existing agreements – Any provision of a collective bargaining agreement that is inconsistent with NSPS will be unenforceable once it is covered, unless the Secretary allows a particular provision to remain in effect. He can cancel that provision at any time. The union may appeal DoD’s determination that a provision is unenforceable 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. 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). They will be appointed by the Secretary for terms of 3 years, although the first members will be appointed for staggered terms of 1, 2, and 3 years. The NSLRB will do many of the things currently done by the FLRA with regards to bargaining issues. Members of the Board are supposed to be independent, distinguished citizens of the US, well known for their integrity, impartiality, and expertise in labor relations, and/or the DoD mission and/or other related national security matters, and will be able to acquire and maintain an appropriate security clearance. The Secretary will appoint two member, one to be Chair of the Board. The third member will be appointed by the Secretary from a list of three to five nominees developed in consultation with the Director of OPM. There is no provision to solicit or consider nominations from labor unions. Members may be removed by the Secretary only for inefficiency, neglect of duty, or malfeasance in office. The Board will establish procedures for handling cases that address all matters associated with a negotiations dispute, including unfair labor practices, negotiability disputes, and bargaining impasses. In addition, the NSLRB, not the FLRA, will resolve exceptions to arbitration awards and disputes over information requests. Decisions of the Board are final and binding. A Board decision is subject to review by a court after it has been reviewed by the FLRA. Federal Labor Relations Authority (FLRA) – The FLRA will continue to handle union issues, such as determining the appropriateness of bargaining units and supervising or conducting elections to determine whether a labor organization has been selected as an exclusive representative by a majority of the employees in an appropriate unit. Scope of Bargaining – NSPS establishes a new management rights section, §9901.911. It spells out three categories of management rights: Paragraph (a)(1) To determine the mission, budget, organization, number of employees, and internal security practices of the Department. Paragraph (a)(2) To hire, assign, and direct employees in the Department; to assign work, make determinations with respect to contracting out, and to determine the personnel by which Departmental operations may be conducted; to determine the numbers, types, pay schedules, pay bands and grades of employees or positions assigned to any organizational subdivision, work project or tour of duty, and the technology, methods, and means of performing work; to assign employees to meet any operational demand; and to take whatever other actions may be necessary to carry out the Department’s mission. The rights shown in italics above, used to be things managers were allowed, but not required to bargain. NSPS would tie their hands and prohibit them from bargaining these things. It is hard to see this as contemporary and flexible. Paragraph (a)(3) To lay off and retain employees, or to suspend; remove; reduce in pay, pay band, or grade; or take other disciplinary action against such employees or, with respect to filling positions, to make selections for appointments from properly ranked and certified candidates for promotion or from any other appropriate source. 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. Under NSPS, this would change. Not only would managers not be required to bargain over the procedures they will observe in exercising their authorities in paragraphs (a)(1) and (2), they would be prohibited from bargaining over them. Management would only be allowed to consult over those procedures. The consultation process puts no pressure on managers to try to reach agreement with the union. Management is not even required to abide by any procedures it develops unilaterally. The regulations say, “Management retains the sole, exclusive and unreviewable discretion to determine the procedures that it will observe in exercising the authorities set forth in § 9901(a)(1) and (2) and to deviate from such procedures, as necessary.” DoD managers under NSPS will continue to have an obligation to bargain over procedures and appropriate arrangements when exercising their rights in paragraph (a)(3). Management will also have an obligation to bargain over appropriate arrangements for employees adversely affected by the exercise of any authority under paragraphs (a)(1) and (2), provided that the effects of such exercise is foreseeable, substantial, and significant in terms of both impact and duration on the bargaining unit, or on those employees in that part of the bargaining unit affected by the change. “Foreseeable,” “substantial,” and “significant,” are undefined and subject to abuse by managers who want to evade their bargaining responsibilities. Even where managers are required to bargain over appropriate arrangements, the proposed regulations remove any duty to bargain over arrangements for the routine assignment to specific duties, shifts, or work on a regular or overtime basis. And management is required only to give notice to the union at the same time it actually makes a change or carries out an action. The proposed regulations allow but do not require managers to give any advance notice at all. Determination of appropriate units for labor organization representation – The FLRA will continue to determine the appropriateness of any unit. The Authority will determine in each case whether the appropriate unit should be established on a Department, plant, installation, functional, or other basis and will determine any unit to be an appropriate unit only if the determination will ensure a clear and identifiable community of interest among the employees in the unit and will promote effective dealings with, and efficiency of the operations of the Department, consistent with the Department’s mission and organizational structure. 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 weaken the so-called “Weingarten” rights for employees subject to an examination by an agency official in connection with an investigation. The employee will still have the right to request a union representative, but, the right will not apply to investigations 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. Note: A similar provision was removed during the DHS Meet and Confer. 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. This right does not apply to meetings for the purpose of discussing operational matters where any discussion of personnel policies, practices or working conditions is a reiteration or application of existing personnel policies, practices, or working conditions; is incidental to the announced purpose of the meeting; or does not result in an announcement of or a promise to change an existing personnel policy(s), practice(s), or working condition(s). Under NSPS, a manager could call a meeting to discuss ways to better accomplish a task and exclude the union because it is strictly about operational matters. If one of the employees suggests changing the overtime roster as a way to get the job done, do we believe that the supervisor will say that such changes cannot be discussed in the meeting and either change the subject or call for a union representative? Standards of conduct for union representatives – The proposed regulations say that employee representatives in the Department are subject to the same standards of conduct as any other employee, whether they are serving in their representative capacity or not. DoD rejects the current notion that only flagrant misconduct by a union representative would subject him or her to disciplinary action. 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 by a subordinate. The whole idea of protected activity is threatened here. This is another provision that DHS put forward and then dropped. Information requests – Under NSPS, DoD still has a duty to furnish information to an exclusive representative that is needed in grievance or appeal proceedings or in negotiations subject to similar limitations currently imposed. However, 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. Managers would just say, “You don’t need that to talk to me.” Unfair labor practices – The unfair labor practices set out in the proposed regulations are essentially the same as those currently contained in chapter 71 with one major exception. 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. Unfair labor practice charges must be filed within 3 months of the alleged practice, unless the Board determines good cause for late filings. Duty to bargain and consult – Bargaining over an initial collective bargaining agreement or any successor agreement should be completed within 90 days, unless the parties mutually agree to continue bargaining. If there is no agreement, either party may refer the matter to the Board for resolution. At any time prior to going to the Board, either party may refer the matter to FMCS for assistance. Bargaining during the term of an existing collective bargaining agreement over a proposed change affecting bargaining unit employees’ conditions of employment should be completed within 30 days. If there is no agreement, either party may refer the matter to the Board for resolution. Either party may refer the matter to FMCS for assistance at any time. Note: The supplementary material in the beginning of the regulations says, “Midterm bargaining …must be completed within 30 days or management will be able to implement the change after notifying the union.” It goes on say that either party may refer the matter to the NSLRB for impasse resolution. This appears to be an inconsistency. Management may not bargain over any matters that are inconsistent with law or the regulations in this part, Governmentwide rules and regulations, Departmental implementing issuances and other Department or Component policies, regulations or similar issuances, or Executive orders. Not only will Department-wide regulations or policies be a bar to bargaining under NSPS, but even Component-wide regulations will preclude 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 included in the process 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. In resolving impasses, the Board will ensure that agreement provisions are consistent with regard to all similarly situated employees. The determination as to which organizations are covered under multi-unit bargaining is not subject to review by the Board. Any party may request the services of FMCS to assist with these negotiations. The unions may request multi-unit bargaining, but the Department has the sole and exclusive authority to grant the request. Multi-unit bargaining will not be subject to ratification because, according to DoD, “…such efforts contradict the basis for such negotiations: timely, uniform application of policies.” Collective bargaining above the level of recognition – Negotiations can occur at the DoD or Component level with labor organization(s) above the level of exclusive recognition. The decision to negotiate at a level above the level of recognition as well as the unions involved, rests with the Secretary and will not be subject to review. Any such agreement reached in these negotiations will be binding on all subordinate bargaining units of the labor organization(s) afforded the opportunity to bargain at the level of recognition and their exclusive representatives, and DoD and its Components, without regard to levels of recognition. The agreement will supersede all conflicting provisions of other collective bargaining agreements of the labor organization(s), including collective bargaining agreements negotiated with an exclusive representative at the level of recognition. 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. In resolving impasses, the Board will ensure that agreement provisions are consistent with regard to all similarly situated employees. The determination as to which organizations are covered under national level bargaining is not subject to review by the Board. Labor organizations may request bargaining above the level of recognition, as appropriate. The Secretary has sole and exclusive authority to grant the labor organizations’ request. The National Guard Bureau and the Army and Air Force National Guard are excluded from coverage under this section. Where National Guard employees are impacted, negotiations at the level of recognition are authorized. These agreements will be subject to agency head review but not to ratification. 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 and not inconsistent with this subpart to resolve the impasse, to include use of settlement efforts. The Board’s regulations will provide for a single, integrated process to address all matters associated with a negotiations dispute, including unfair labor practices, negotiability disputes, and bargaining impasses. Notice of any final action of the Board under this section will be promptly served upon the parties. The action will be binding on such parties during the term of the agreement, unless the parties agree otherwise. Nothing in this section precludes judicial review of any portion of a decision addressing a negotiability dispute or unfair labor practice charge. Grievance procedures - Collective bargaining agreements will provide procedures for the settlement of grievances, including questions of arbitrability, and will be the only authorized procedure for resolving issues under its exclusive coverage. In addition to the matters historically excluded from federal sector grievance procedures such as classification, prohibited political activities, and retirement, NSPS excludes performance appraisal ratings and mandatory removal offenses from the scope of the grievance procedure. For appealable matters, except for mandatory removal offenses, an aggrieved employee may raise the matter under an applicable appellate procedure or under the negotiated grievance procedure, but not both. Exceptions to arbitration awards – Will be filed with the Board. In addition to the bases contained in 5 U.S.C. 7122, exceptions may also be filed by the parties 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. The Board may take such action concerning the award as is consistent with this subpart. If no exception to an arbitrator’s award is filed under paragraph during the 30-day period beginning on the date of such award, the award is final and binding. Either party will take the actions required by an arbitrator’s final award. The award may include the payment of back pay. Official time – These provisions remain essentially the same, although we can expect tougher negotiations and an unsympathetic Board to resolve impasses. Savings provisions – This subpart does not apply to grievances or other administrative proceedings already pending on the date of coverage of this subpart. Any remedy that applies after the date of coverage under any provision of this part and that is in conflict with applicable provisions of this part is not enforceable.