Comment Number: OL-10504057
Received: 3/8/2005 11:13:29 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:

The Department of Defense (DoD) and the Office of Personnel Management (OPM) should scrap their harmful proposals for the National Security Personnel System (NSPS) and work collaboratively with employee unions to develop a new system, as Congress directed them. America has a tremendous investment in its public servants and I strongly believe that the proposed NSPS regulations are a sweeping attempt to undermine and destroy this unique and powerful work force. The regulations put forth in the DoD’s proposed regulations will weaken America’s capacity to meet our security and defense needs for tomorrow. The means by which the DoD has developed these regulations is contrary to what they have advertised to the Congress of the United States and the American people. It is truly a disappointment and undermines the trust and confidence DoD employees have in the core values of our nation’s leaders involved with the development of these proposed regulations. As a DoD employee of thirty-three years, I am deeply disturbed as I read the proposed NSPS regulations and how it will drastically impact dedicated employees such as my co-workers and myself. I believe that these proposed regulations exceed the authority Congress granted in the NSPS statute in the following ways. The DoD’s proposed NSPS regulations 9901.905(a) and 9901.914(d)(5) violate Congress’ explicit order in 5 U.S.C. 9902(b) to preserve collective bargaining by overriding any provision of a collectively bargained agreement through “DoD or Component Issuances.” In proposed NSPS regulation 9901.914(d)(5), the DoD seeks to declare such issuances to be non-negotiable and superior to collectively bargained agreements. Essentially, this provision will provide the DoD the authority to make any change it desires through these issuances, while barring any negotiation over these changes, in spite of Congress’ specific orders in the statute to the contrary. The DoD’s proposed NSPS regulations violate the specific Congressional directive in 5 U.S.C. 9902(b) to preserve collective bargaining by expanding management rights so dramatically as to deny bargaining in almost any circumstance. In the proposed NSPS regulation 9901.910(a)(2), the DoD declares that management will now have the power “to take whatever other actions may be necessary to carry out the DoD’s mission,” a clause that literally has no definition or limitation in the regulation. This proposed management “right” effectively ends collective bargaining in the DoD, in direct violation of Congress’ specific order to the contrary, as management can literally apply it to any situation in the DoD to deny bargaining. In 5 U.S.C. 9902(m)(6), Congress required the DoD to ensure that any new labor relations system provided for an independent third party review of the DoD’s decisions. However, the DoD’s proposed NSPS regulation 9901.907 (a)(1) intends to create a new labor relations review board, costing hundreds of millions of taxpayer dollars to invent a structure similar to the existing FLRA. Further, under proposed NSPS regulation 9901.907, the members of this board would be appointed solely by the Secretary of Defense, with no Congressional or outside oversight. This is the equivalent of the “fox guarding the henhouse,” violating Congress’ specific instructions to ensure an independent third party review. Proposed NSPS regulation 9901.907(a)(1) violates Congress’ specific instructions in 5 U.S.C. 9902 (m) (6) to ensure independent third party reviews of the DoD’s labor relations decisions. In proposed NSPS regulation 9901.907(a)(1), the Secretary of Defense is provided the unilateral power to appoint as many members to this review board as desired. In other words, if the review board begins to issue decisions the Secretary doesn’t like, the Secretary can “pack” the Board with as many new people as required until the board issues decisions to the Secretary’s liking. This proposal is an emphatic rejection of Congress’ instructions in 5 U.S.C. 9902(m)(6). The proposed NSPS regulation 9901.807(k)(8)(iii) denies employees their right to a fair hearing of their appeals for adverse actions taken against them by the DoD. In this proposal, the DoD reserves for itself the right to unilaterally reverse the decision of an MSPB Administrative Judge (AJ), merely because the DoD does not agree that the decision was correct. This is the equivalent of the prosecution being able to tell a courtroom judge that the decision just rendered is not what the prosecution wanted, so the prosecution will overturn the judge’s decision! DoD and OPM should scrap their harmful proposals for NSPS and work collaboratively with employee unions to develop a new system, as Congress directed them to do! Sincerely, Rich Hunt