| Comment Number: | OL-10505859 |
| Received: | 3/11/2005 9:18:54 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:
Section .907(f)(2) – If a party wants to seek judicial review of an Authority decision, and that decision is never issued, how will a party (or the courts) know when the timeframe for filing for review started. Absent the Authority issuing a decision, there will be no public record of when the decision is final and when the period for judicial review starts. Section .908 – Given the budgetary restrictions and the fact that there is already an established neutral third party (i.e., the FLRA), it seems impractical to have the NSLRB perform all the same functions already being performed by the FLRA. I recommend that the FLRA continue to rule on unfair labor practices up until the decision of the ALJ. At that point, the ALJ’s decision could be reviewed by the NSLRB. Another alternative is to have the FLRA rule on all labor relations matters using the NSPS rules. After a period of time, the Department of Defense can review the rulings of the FLRA (involving DoD) and determine whether a NSLRB is necessary to protect the Department’s national security mission. Section .908 – Recommend adding that the Board can award attorney fees. Section .908(b) – As written, this portion allows a party to unilaterally request an interpretive decision by the Board on a matter not currently in dispute between any two parties. For example, a component may request the Board to address the interpretation of a particular portion of the NSPS which it finds confusing. In that case, who, besides the component seeking the interpretation, would have standing to file an appeal of the Board’s decision? Would any local union within the component be able to file an appeal? Section .910(c) – The language, “management will consult as required under 9901.917” is confusing. Section .917 does not specifically “require” that consultation be done. Rather, .917(d)(2) specifies when “management has no obligation to bargain or consult….” Nowhere in .917 does it specifically specify when consultation has to occur. Section .910(e) – Recommend replacing “When an obligation exists under 9901.913” with “At the request of the exclusive representative”. As presently written, the sentence makes no sense. Section .910(e)(2)(i) – The description of what is appropriate arrangement bargaining and what is excluded now covers only matters under (a)(1) and (2) of the management rights. Recommend the second sentence of this section be moved to start a new subsection (3). This would then provide that the requirements for appropriate arrangement bargaining cover both (a)(1)/(2) and (a)(3) rights. Section .910(g) – If appropriate arrangement bargaining is not precedential or binding on subsequent acts, does that require bargaining each time management does the identical thing or do we have to let the union know when it is not binding or when we will honor previous agreements? Section 910 – A general comment. How does this apply if a management right is part of a large change, that is, where the right is just a portion of the change? Does the entire change fall within the right or just the portion of the change directly relating to a management right? For example, if local management proposes an extensive policy on Access to the Post, (where portions are clearly a management right regarding internal security) does the entire policy then fall within the management right? I would recommend that it not, only the portion of the policy directly related to the management right would have the more limited scope of bargaining. Section .913(b)(2) – recommend putting at the end of this sentence, “holding national consultation rights”. Section .914(b) (including other related sections)– This section identifies that the Department or Component will negotiate in good faith when in most instances, it is the local installation where recognition is granted that does the bargaining. The regulation should make clear that it is representatives of the Department or Component that will be doing the bargaining. As such, the first sentence should read, “The duty of representatives of the Department….” (See also, for example, section .914(d)) Section .915 – Recommend addressing what happens if an employee, who is on automatic dues, leaves the bargaining unit because of promotion to a supervisory position and management fails to automatically terminate the dues. A provision should be added that leaves management fiscally harmless for failing to timely terminate the employees’ automatic dues withholding absent the employee’s notification to management that his or her dues should be terminated. This would remove responsibility for refunding improperly collected dues from both management’s and the union’s responsibility. Section .917(c) – A sentence should be added to allow the parties to jointly decide to continue bargaining after the 30-day period expires. (Similar to the provision regarding contract negotiations.) Also, consider addressing union initiated bargaining. Section .919 – Under these provisions, can management request the services of the FMCS during these bargaining sessions? Also, it would likely make sense to specify that any agreement reached is subject to agency head review, though this could be argued even without specifying it in this section. Section .922 – Somewhere in this section it should state that arbitrators can award attorney fees. Section .922(f)(2) – This section does not address the requirement that arbitrators comply with MSPB rules/decisions regarding appealable matters under Chapters 43 and 75. Section .922(g)(3)(i) – Recommend adding at the end of the sentence, “as applicable or current appeal procedure.” Section .923(a),Next to last sentence – This section addresses adjudication of certain matters “under procedures described in 9901.807. What about organizations not under the NSPS HR/appeals system. Section .923(d) – Recommend adding “and attorney fees” at the end of the sentence. Section .924(e) – This section is unclear. It seems to state that employees can get official time to represent employees in other units when engaging in multi-unit bargaining or bargaining above the level of recognition, only upon mutual agreement of the parties. I can’t tell whether this requires management’s approval for official time for a union official to engage in multi-unit bargaining or whether it is intended to mean official time is granted for multi-unit bargaining and that management may authorize official time for union officials to represent employees outside the representative’s bargaining unit.