| Comment Number: | OL-10501885 |
| Received: | 2/28/2005 11:39:22 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:
General: I believe the proposed NSPS will undermine the Civil Service and hurt the mission of the DoD employees. 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 the 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. 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). However, again DoD fails to identify that 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. “Public Law 108-136 was enacted in November 2003. Sixteen months later DoD still only has a skeleton frame work for a massive overhaul of an existing personnel system. Almost all of their language shows a complete lack of planning. They use words or phases such will implement or will create. In order to comment most effectively on the proposed new personnel system in accordance with the congressional directives, it is mandatory that the drafters disclose exactly what they will have in place of the current system. The Secretary of Defense and the Director of OPM have failed in their basic statutory duty to disclose the details of the new proposed system. Until they disclose these details I strongly urge you to reject implementation of any new personnel system for DoD workers. Subpart B Classification, Sections 9901.201 to 9901.231 Under the proposed regulations, DoD states for classification structure that they “will document in implementing issuances the criteria, rationale and definitions for grouping occupations or positions into career groups, pay schedules, and pay bands.” Excuse me, but I thought a personnel system had this “ground zero” documentation requirement PRIOR to implementing a new system. It appears that the Secretary will improvise as he goes along! How can we comment effectively on some thing that is not disclosed to us? This is patently unfair, unjust and undemocratic. Classification determinations should not be excluded from the list of conditions of employment. Employees should continue to be able to contest or appeal their job classifications. Under the proposed regulations, the definition of a 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 most if not all secretaries, and others unknown at this time, from being in the bargaining unit. Subpart C Pay, Sections 9901.301 to 9901.373 My position is that the employees in DoD should continue to receive the same annual pay across-the-board and locality pay adjustments that other General Schedule and/or Federal Wage Systems workers receive. Congress, not the Secretary of DoD, should determine the compensation levels for all federal employees. We work and live in the best democracy in the world. Please, let it remain so! This proposal smacks of one man autocratic rule of King George which we rebelled against two hundred years ago. The idea that “high performers and low performers are paid alike” identifies a possible 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. I, myself, have been awarded with sustained superior performance awards twice in my federal civil service career. I have received numerous cash awards for specific acts which I performed at a level higher than the normal level of performance. My position is that the individual pay increases for performance should include guaranteed percentages in the regulations so that employees will understand the pay system and what their pay increase will be depending on their performance. The proposed regulations do not contain one iota of what employees need to do to obtain a pay increase. I strongly object to DoD’s language identifying “pay and the movement of personnel as pegged to outdated, narrowly defined work definitions” and that it’s current “hiring processes are cumbersome”. DoD’s has not presented one fact to substantiate this claim. Merely stating that “pay and the movement of personnel as pegged to outdated, narrowly defined work definitions” and that it’s current “hiring processes are cumbersome” does not make it so. The proposed regulations excludes pay and pay adjustments as conditions of employment, so now unions can not bargain over appropriate procedures to determining if an employee will get any pay increase and employees can not grieve over wrongful determinations of pay by the supervisors. This proposal should be deleted in its entirety. Subpart D Performance Management - 9901.401 to 9901.409 Under the proposed regulations Ratings of record are not grievable. 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. No where in the regulation is the system defined that employees will use to complain about their performance ratings. In order to insure fairness and accuracy, DoD employees should be able to appeal any performance rating to an independent grievance and arbitration process like they can do now. ONCE AGAIN, under the proposed regulations, DoD states that they “will issue implementing issuances that establish a performance management system for DoD employees.” A personnel system has this “ground zero” documentation requirement before implementation! Subpart F Workforce Shaping - 9901.6012 to 9901.611 DoD should not change the current layoff/RIF rules which give balanced credit to performance and employee valuable years of committed service to DoD. DoD states that “Currently, pay and the movement of personnel are pegged to outdated, narrowly defined work definitions.” This type of language sounds like it creates wide openings for DoD to assign its civilian employees anywhere in the world, such as war zones, any time it decides. The rule does not discuss volunteers and/or pay like its contractor and military forces have. 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 supervision/management should not be a reason to create chaos in the work force by creating a new personnel system. All that is needed is to open and fill those jobs, by civilians, which should not have been performed by military. Subpart G Adverse Actions - 9901.701 to 9901.810 Due process and fairness demand that the independent body reviewing a major suspension as termination be allowed to alter the proposed penalty if they deem it to be unreasonable. The current standards approved by the courts to guide such bodies should continue to be used. This proposal should be rejected in its entirety. DoD admits that its rules are “substantially more limiting standards for the mitigation of penalties than those previously established by the Merit System Pay Board” 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 and says that this is to ensure that when a penalty is mitigated, the maximum justifiable penalty is applied. This concept should be rejected in its entirety! 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 was 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. This could have the effect of burdening employees with attorney fees necessary to effectively defend themselves against capricious acts by the Agency, which might not be based on just cause. Employees should not be held responsible for any chilling effects on DoD’s ability to carry out its mission due to inept investigations performed by Representatives of the Department. Under the proposed regulations DoD is removing the union’s institutional right to be present during EEO proceedings, to include mediation efforts, after a formal EEO complaint has been filed or other matters appealed by employees. This will allow DoD to make deals with employees in the EEO process and disregard any previously negotiated agreement bargained in good faith between the parties. This also leaves out the ability of the complainant to request that the union be present. Under the proposed regulations 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 are removed for 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 are not violated? Subpart I Labor-Management Relations - 9901.901 to 9901.929 The labor management law that has governed the employees’ right to organize and engage in collective bargaining has worked well since 1978. There is no compelling reason to take away the collective bargaining rights or grievance rights. DoD should not create a “company dominated dispute board.” Any dispute board must be “jointly selected” by management and the Union. 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 is management’s predisposition to a militaristic way of thinking or in other words (Dictatorship), which should not be a basis for any relationship to include one between management and civilian employees. 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 has violated this part of the law and has unilaterally defined the meaning of collective bargaining. The law further ensures employees may organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them. The proposed regulations will limit grievances over violations of any law only when the law may be the subject of a grievance only if that law has "been issued for the very purpose of affecting the working conditions of employees--not one that merely incidentally does so. This change adopts the D.C. Circuit's interpretation of a grievance in U.S. Dep't of Treasury, U.S. Customs Service v. FLRA, 43 F.3d 682 (1994) DoD says it will create a National Security Labor Relations Board (NSLRB) composed of at least three members appointed to fixed terms. The Secretary will appoint the members, with one member appointed from a list developed in consultation with the Director of OPM. By having the sole authority to appoint members, the DoD leaves the employee’s representatives out of the process for developing a credible, responsive personnel system. Under proposed regulations there will be no duty to bargain over matters that have “a minimal number of employees.” Bargaining will be focused on those matters that are of significant concern and impact. What is a minimal number of employees who will be written off just because there are not a lot of them? Who determines what significant concern or impact is?