| Comment Number: | OL-10500699 |
| Received: | 2/18/2005 3:26:49 PM |
| Subject: | Notice of Proposed Rulemaking, Request for Comment |
| Title: | National Security Personnel System |
| CFR Citation: | 5 CFR Chapter XCIX and Part 9901 |
| Attachment: | Federal RegisterNSPS.doc Download Adobe Reader |
Comments:
Federal Register Vol. 70, No. 29, Docket No. NSPS-2005-001 Page 7553, middle column, last paragraph – Our Management is limiting our access to the Federal Register to non-duty hours. Apparently they don’t want the workforce to understand the new system. Page 7554, 1st column, 1st paragraph – employees may organize, but are not going to be able to bargain. Page 7554, middle column, 1st paragraph – Employees are not being given access to an independent point for final resolution. The internal board will not be independent of the agency. Page 7556, middle column, last paragraph – the meetings were not question and answer sessions, employees could ask questions or provide comments, but they only took notes. Page 7559, 1st column – To who will employees be able to request reconsideration of the classification? Page 7559, 3rd column – Will market supplements be added to base pay for consideration of retirement and insurance payouts? Page 7660 - So if everything worked out perfectly within a pay pool, everyone on team performed exceptionally, their payout could be less then someone who was exceptional on a poor performing team? Page 7561, middle column, last paragraph – Why change the current system because of perceived inflexibility, why not just educate management? Page 7562, 1st column, Performance and Behavior Accountability – observations of conduct and behavior need to be compete and taken in context with what is going on at the time. An isolated observation may not provide a clear picture. Is this going to result in conformity for conformity sake? Page 7562, middle column, last paragraph – Will the employee have the right of due process, independent review? Page 7562, 3rd column, Setting and Communicating Performance Expectations – Do the changed standards kick in immediately upon notification of the employee? Page 7562, 3rd column, Monitoring Performance and Providing Feedback – What happens if there is no interim performance review? Must you be under the standards for a minimum period prior to the end of the rating cycle? Page 7563, 1st column, Performance Rating Challenges – Need greater detail, how long will employees have to challenge their rating, mandatory timeline for management response, to who, any independent appeal process? Page 7563, 1st column, Definitions – will time limited employees have due process protections? Page 7563, 3rd column, Probationary Periods – Need further clarification of the appeal rights of probationary employees. Will they have right to independent review of any adverse action? Page 7564, 1st column, Workforce Shaping-Subpart F – by placing these restrictions on what the competitive area, you could lose a higher performing, more experienced employee from one area, while retailing a poorer performer in another area. Based upon this, a trainee could be retained, while a fully experienced employee is let go. In the ordering of the competitive group’s list, how many performance ratings are considered, are they weighted? Page 7564, 3rd column, Adverse Actions-Subpart G – Does it include all disciplinary actions, to include oral and written reprimands? For probationary employees, 5 CFR 315.804 and 315.805, provide little or no due process from adverse actions. The supervisor can terminate for little or no reason and the probationary employees have no right of review. What happens to preference eligible employees before completion of 1 year? Page 7564, 3rd column, 2. Mandatory Removal Offenses – The mandatory removals offenses need to be identified prior to implementation and any changes need to be reviewable by someone outside of the organization. Also, there needs to be procedures for mandatory review of the charges prior to action being taken. Page 7565, 1st column, 3. Adverse Action Procedures – Due to the shorten timelines; it should be mandatory to notify of his right to Union representation. Also automatic extension of time to reply, if agency doesn’t provide immediate access to all supporting documentation required to respond to charges. What is the time limitation for management response to the employee’s reply? Page 7565, 1st column, 4. Single Process and Standard for Action for Unacceptable Performance and Misconduct – Management’s inability to follow procedures is a poor excuse to write new rules, why not train the managers? If there are no time frames established, there is nothing to prevent a manager from changing the standards, and then initiating action against an employee for failure to meet the new standards. Employees need a reasonable amount of time to correct performance or conduct once they are notified of the problem. Page 7565, middle column, Appeals-Subpart H – Will current Negotiated Agreements remain in effect once NSPS is implemented? Does this include the right of outside arbitration? If DOD wants to reinvent the Agency, probationary employees should be given at least some minimal appeal rights to prevent miscarriage of justice. Can the Internal DOD review process overturn the MSPB administrative judge’s decision? Need to add those adverse actions that cannot be appealed to MSPB. Page 7566, 1st column – After DOD and OPM review, can they unanimously do away with appeal rights to MSPB? Page 7566, 1st column, 2. Department Review of Initial MSPB Administrative Judge Decisions – Can the DOD overturn the decision of the judge. Can the employee send the decision back for review based upon the same reasons? Will OPM automatically review all decisions? Page 7566, 3rd column, - Are these the only reasons that the full MSPB can order corrective action? Page 7567, middle column, 4. MSPB Appellate Procedure Improvements – Will the Director of OPM review all decisions or just ones requested by the Agency? Can the employee request Director of OPM intervention? Page 7567, 3rd column, 6. Affirmative Defenses – Is the notice of facts sufficient or does the Agency have to provide access to all documentation to the employee? Page 7567, 7. Penalty Review – Is there any review above the Secretary? Any outside review? Why is the Department’s judgment given deference without any outside review? Page 7568, 1st column, 8. Attorney Fees - What if the Department should have known the facts, if they had done a reasonable investigation prior to taking action? Page 7568, middle column, 11. Judicial Review – Can the employee also seek reconsideration of a final MSPB decision? Page 7568, 3rd column, 1. Purpose – DOD can generate an issuance that prevents something from being negotiability; they could prevent anything from being negotiable. Page 7569, 1st column, 2. Definitions – Collective Bargaining, since it doesn’t require reaching agreement, can management just implement anything after mentioning it to the Union? Page 7569, 1st column, Definitions – Management official, does this include team leaders, who have responsibility, but not authority over employees? Page 7569, middle column, 6. National Security Labor Relations Board – Is there any process for review or approving of the appointees? Can they be members of the Secretary’s staff or work for him? Can NSLRB decisions on unfair labor practices be appealed to an outside organization? Page 7570, 3rd column, 9. Determination of Appropriate Units for Labor Organization Representation – Is it acceptable for attorneys to be biased toward management? Government attorneys are not representing what is right, but what can be defended. Page 7571, 1st column, 11. Representation Rights and Duties – Unions should have the right to attend EEO meetings at the request of the employee, to include mediation efforts. Page 7571, middle column – Will managers and other management officials be held to the same conduct requirements? Page 7571, 3rd column – Is the decision of the authorizing official reviewable by anyone? Page 7571, 3rd column – Will sensitive information no longer be available through freedom of information requests? Page 7571, 3rd column, 12. Unfair Labor Practices – Are these issuances open to review? Page 7572, 1st column, 13. Duty to Bargain and Consult – So can these management changes be reviewed and overturned by anyone? Page 7572, 3rd column, 16. Grievance Procedures – Why are ratings excluded from the grievance procedures? Who can an employee go to relieve from a management error in their rating? Page 7576, 9901.103 Definitions, Mandatory Removal Offense – Need specifics and the list should be reviewable by someone to prevent abuse. Page 7576, 9901.103 Definitions, Performance – Definition should be restricted to job accomplishment in a professional manner, adding other things dilutes the meaning is open to abuse. Page 7576, 9901.103 Definitions, Rating of Record – should be based upon performance of assigned duties assigned in job standards with any changes made during rating period. Page 7577, 9901.103 Definitions, Unacceptable performance – from job standards for unacceptable reasons. Page 7577, 9901.104, Scope of authority – Waived or modified by who and with what review authority? Page 7578, 9901.106, Continuing collaboration – DOD and OPM failed to collaborate in good faith. Data was not made available, discussion limited and comments ignored. Page 7578, 9901.107, Relationship to other provisions - being able to waive or modify any rules without review contradicts the principles of fairness and openness. Page 7579, 9901.222 Reconsideration of classification decisions – If the employee is placed in a lower band and is upgraded upon review, why doesn’t he get retroactive pay? It was management’s mistake. Page 7580, 9901.304 Definitions – Does extraordinary pay increase (EPI) increase base pay? Can it increase base pay above the level of the pay band? If at top of pay band, can you receive EPI? Page 7580, 9901.304 Definitions – Is local market supplement an increase to base pay? Used for retirement computation and life insurance? Is thrift savings program contributions based upon total pay or are some types excluded? Page 7581, 9901.312 Maximum rates – So there are limits to pay for performance? The pay of an exceptional employee could be capped below what he should earn? Page 7581, 9901.313 National Security Compensation Comparability – Will the overall amount allocated be by pay pool or is it total budget, in which case some areas will get a larger piece of the budget pie? Page 7582, 9901.332 Local Market supplements – So could an employee who moves from career group to another at the same pay band and local market area have his pay decreased? Page 7582, 9901.342 Performance payouts – Are there any limits on size of performance shares? Page 7584, Conversion Provisions, 9901.373 Conversion of employees to NSPS pay system – If a GS employee is being paid above the step 10, due to retain pay or whatever, and at conversion they are at the top of the band, how will their pay be set? Page 7584, Subpart D-Performance Management, 9901.401 Purpose – Will TAPES be dropped? Under the current system there are timelines and there are still supervisors who fail to meet those timelines, why would new timelines work any better? How are you going to ensure performance feedback and dialogue? What effective safeguards to ensure that management of the system is fair and equitable? Page 7585, 9901.405 Performance management system requirements - (2) can it be more than once a year? Pay increased more than once a year? (4) Will supervisor/manager’s performance be tied to their employee’s performance? Their rating cannot be high if their employee’s performance is low? Page 7586, 9901.409 Rating and rewarding performance (g) – Need more detail? Is the decision reviewable by anyone? Can someone outside of the organization review it? Page 7589, 9901.607 Retention standing (a)(3) – Will only the current rating of record be used? Not an average of the last 3? Page 7591, 9901.712 Mandatory removal offenses – Needs to include the able to appeal the decision to someone, the Secretary if no one else? Page 7592, 9901.805 Coverage (d) – Probationary employees need at least minimal due process rights, 5 CFR 315.806 does not afford those rights? Page 7596, 9901.907 National Security Labor Relations Board – These appointments are not subject to review or approval by anyone? He can appoint biased individuals and they are only answerable to the Secretary. He decides who meets the qualifications. Since the Board is appointed by and works for the Secretary, they can hardly be considered impartial.