| Comment Number: | OL-10501712 |
| Received: | 2/27/2005 7:31:55 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:
The proposed NSPS language: “DoD civilians are unique in government: they are an integral part of an organization that has a military function. DoD civilians must complement and support the military around the world in every time zone, every day. Just as new threats, new missions, new technology, and new tactics are changing the work of the military, they are changing the work of our 700,000 civilians. To support the interests of the United States in today's national security environment--where unpredictability is the norm and greater agility the imperative--civilians must be an integrated, flexible, and responsive part of the team… Currently, pay and the movement of personnel are pegged to outdated, narrowly defined work definitions, hiring processes are cumbersome, high performers and low performers are paid alike, and the labor system encourages a dispute-oriented, adversarial relationship between management and labor.” will allow DoD to assign its federal civilian employees anywhere in the world it deems necessary, such as war zones, any time it decides. This rule will give DoD civilian employees less rights than contractors and military forces have. No consideration given to the fact that contractors are paid a higher wage for foreign work; contractors volunteer for the work they do in hazardous areas such as war zones; military are paid hazardous duty pay for war zone assignments. DoD identification of: “pay and the movement of personnel as pegged to outdated, narrowly defined work definitions” and “that its current “hiring processes are cumbersome” is simply recognizing problems created as a result of its decisions to “Centralize” the duties of its civilian personnel offices. The idea that: “high performers and low performers are paid alike” identifies the failure of supervision and management to correctly/appropriately manage the current pay system, which does allow for pay to be paid or withheld based on performance. The DoD workers should not be held responsible for this management/supervision failure by the removal of their right to equal pay for equal work. Nothing in the current labor system: “encourages” a dispute-oriented, adversarial relationship between management and labor. The problem with any poor relationship between management and labor lies with management’s predisposition to a militaristic way of thinking when dealing with civilian issues or in other words (Dictatorship), which should not be a basis for any democratic relationship between management and its civilian workforce. DoD says that: “Public Law 108-136 provides… the Department of Defense and OPM--in “collaboration” with employee representatives--authority to establish a flexible and contemporary system of civilian human resources management for DoD civilians.” Synonyms for the word Collaboration are: (Teamwork; Partnership; Group effort; association; alliance; relationship; and cooperation) there was NEVER any “collaboration” from DoD with their employee representatives! DoD says that: “The attacks of September 11 made it clear that flexibility is not a policy preference. It is nothing less than an absolute requirement and it must become the foundation of DoD civilian human resources management.” but does not identify how the current system failed or was in anyway causal to the September 11 terrorist attacks on America. DoD says: “The HR management system will be the foundation for a leaner, more flexible support structure and will help attract skilled, talented, and motivated people, while also retaining and improving the skills of the existing workforce.” This type of flexibility will allow reductions in force (RIFs) to be conducted for any reason, even ones that might be illegitimate, only for DoD to turn around and hire “more talented” employees. How such job insecurity will entice “talented” employees to the DoD is beyond me. DoD says that: “The Department sometimes uses military personnel or contractors when civilian employees could have and should have been the right answer.” Mismanagement of personnel by the Department, supervision or management should not be a reason to create chaos in the work force by creating a totally new personnel system. All that is needed is to open and fill those jobs, by civilians, which, as DoD puts it, should not have been performed by military. DoD identifies correctly that: “the law requires the Department to establish a contemporary and flexible system of human resources management” but fails to identify that the law requires DoD to:… ensure that employees may organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them absent any restrictions established by the law. DoD’s proposed regulations will violate this part of the law and allow DoD to unilaterally redefine the meaning of collective bargaining. DoD admits that its rules are “substantially more limiting standards for the mitigation of penalties than those previously established by MSPB” and that their intent is to “explicitly restrict the authority of MSPB or Arbitrator to modify penalties to situations where the penalty was wholly without merit.” It further says “this is to ensure that when a penalty is mitigated, the maximum justifiable penalty is applied.” Why does DoD believe its civilian workers deserve less rights than other federal and private sector workers? Regarding attorney fees, DoD proposes to modified the current standard for recovering attorney fees and says that: “under the current standard, the Department may be required to pay attorney fees if the Department's action were clearly without merit and based on facts that were not known to management when the action was taken. This is an unreasonable standard that can deter the Department from taking action in appropriate cases and has a chilling effect on the Department's ability to carry out its mission.” Employees should not be required to carry the cost of retaining an attorney necessary to effectively defend themselves against capricious acts by the Agency that are taken without just cause. Employees should not be held responsible for any chilling effects DoD may feel simply because Agency representatives do not properly and fairly investigate employee conduct. If a DoD employee is able, through representation of an attorney, to show an Agency disciplinary action was taken, either wholly or in part, for wrong reasons, that employee should not have any right diminished, including attorney fees, as provided for in the back pay act. DoD says that: “Congress recognized DoD's need for enhanced flexibilities to ensure mission accomplishment when it passed the National Defense Authorization Act providing for the creation of the National Security Personnel System (NSPS)” However, DoD didn’t identify that the current personnel system has worked well through many wars dating back to WWII, nor did DoD explain to Congress how the current personnel system is broken or causal to a break down in its ability to defend our nation. In its stated purpose of the NSPS, DoD repeats the fact that “Congress authorized the Secretary of Defense and the Director of the Office of Personnel Management to establish a labor-management relations system and points to 5 U.S.C. 9902(m).” The law did not grant DoD the right to remove employee rights to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them. Congress also said, and the law assures, the participation of employee representatives in the development and implementation of the labor management relations system by requiring the Secretary of Defense and the Director of OPM to afford employee representatives and management the opportunity to have meaningful discussions concerning the development of the new system; this did not happen with the proposed NSPS. DoD’s creation of a National Security Labor Relations Board (NSLRB) composed of at least three members appointed to fixed terms by the Secretary and Director of OPM can hardly be considered an impartial hearing body if it leaves employee representatives out of the process for developing the system. DoD identified that it removed the term “consult”. Consultation under the proposed regulations, as well as under chapter 71, does not require that the parties reach an agreement; which in turn means that DoD must bargain in good faith to agreement or impasse. However, nothing in the DoD’s proposed NSPS requires DoD to participate in fair and impartial third party proceedings; an Agency controlled NSLRB does not give the impression of third party impartiality. The new rules exclude pay and pay adjustments as a Condition of employment. Unions should be able to bargain over appropriate procedures for determining whether employees will get any pay increase at all and employees should be able to grieve over wrongful determinations of pay by their supervisors. DoD should not exclude classification determinations from the list of negotiable conditions of employment. By doing so, employees will no longer be able to contest or appeal their job classifications, for which they were hired. Who better would know specifics of how to do a job than the persons performing those duties? Under the proposed NSPS, ratings of record are not grievable, however, subpart D of the rules provides for the development of a formal process whereby employees covered by subpart D may seek reconsideration of their ratings of record issued under this system. What is the system and who will define it if employees, through their unions, are not allowed to negotiate such things? The term Confidential Employee is modified to include those “employees providing confidential support to an individual who formulates or effectuates management policies, not just those employees providing support to an individual who formulates or effectuates labor-management relations policies.” This has the effect of removing many employees who are currently covered under collective bargaining agreements, who have not otherwise been shown to pose any risk to our nation’s security. DoD should be required to provide Congress its rationale and prove any risk to national security it says any employee poses before removing the rights afforded those employees under any personnel system. DoD’s conclusion that tasks associated with supervision of military members creates a conflict of interest are unfounded. Tasks associated with supervision of military are different than those associated with civilians unless you intend to treat these two types of employees similarly. The face-to-face meeting requirement should not be removed in favor of telephonic or written communications. This suggests that negotiations between the United States and other countries would be most effective by telephone or type; I don’t think so. Face-to-face negotiations produce far superior agreements than any other forms of discussion, no matter what arena. DoD’s proposal to limit negotiations to 60 days, over conflicting provisions of a contract and their new regulations, is a clear indication that the interest is not about getting it done for the right reasons but simply to limit employee imput. Anyone who has any legitimate negotiating experience knows that some issues require many different ways of being looked at before they are properly addressed. The Union’s right to ensure management does not wrongfully inform the bargaining unit about their conditions of employment should not be removed simply because Managers and supervisors do not inform themselves about employee and union rights. Employee and Union rights should not be trampled upon simply because management or supervision “believe” that effectiveness, efficiency, communication and problem solving will be adversely affected by the presence of the union. Case law has shown that the law does not look upon the union as a deterrent to management’s or an individual employees rights during EEO proceedings and the union’s institutional right to be present during such proceedings, should not be removed. This institutional right prevents unfair dealings and does not allow the blatant disregard for any previously negotiated agreement that has been bargained in good faith between the parties. How will the union be assured that management is being forthcoming with any information about bargaining unit impact; if it will at all? DoD’s insistence on removing decisions by the courts is questionable. For example: with “Weingarten” rights, which permits union representation at the employee's request when management examines an employee during an investigation and the employee reasonably believes that discipline will follow, what is the need to prevent an employee from being assured that his or her rights are being considered/protected during investigations conducted by the IG, Command or the AFOSI? What assurances will be given to an employee, who used to have some protections from abuse of power, under Weingarten, that their rights will not be violated? Union representatives, who are employees, should not be subjected to Agency disciplinary action, when they engage in “robust debate”. How can a truly free exchange of ideas be achieved if one side of a discussion has the power to injure the other through disciplinary actions? What does DoD mean by “adequate alternative means” when talking about obtaining requested information? And who decides what proper discussion and understanding is that would determine the lack of need for any requested information? The current process of obtaining information necessary for proper discussion, under the § 7114(b)(4) of the Statute No entity should be allowed to determine for itself whether it violated a law. The Unfair Labor Practice charge (ULP) process should not be changed. There should be a duty to bargain over matters for any number of employees. Bargaining on matters that are only of significant concern and impact effectively eliminates bargaining for some employees who will be written off just because they are not in the majority. Employees are best equipped to determine what significantly concerns or impacts them. The NSPS proposed language leads one to believe that if the parties bargain over an initial term agreement or its successor and do not reach agreement within 90 days, the parties will be forced into impasse rather than attempting to mutually come to agreement. Bargaining should not be limited to any predetermined time limit. DoD infers that its employees under the current system are not high performers who are focused on effective mission accomplishment by saying: “the primary benefit to the public of this new system resides in the HR flexibilities that will enable DoD to attract, build, and retain a high-performing workforce focused on effective and efficient mission accomplishment.” DoD workers are military retirees, veterans, and combat veterans, and family members of active duty military members; who better to protect our country than those who have been there and whose longevity of loyalty cannot be challenged?