Comment Number: OL-10509804
Received: 3/15/2005 6:28:03 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:

General Comments - These comments are submitted by James Blick of the International Federation of Professional and Technical Engineers (IFPTE) Local 1. The stated need for NSPS, according to the Congressional testimony of Secretary Rumsfeld and Dr. David Chu, is more flexibility to address the unique role the Department of Defense plays in National Security. In order to accomplish this narrowly defined goal DoD asked for and was granted broad authority by Congress to write new regulations to replace many parts of 5 USC and 5 CFR. Dr. Chu testified that he can send a contractor into a crisis with just a phone call, but with Federal Employees he is inhibited by cumbersome rules that require asking for volunteers and/or developing complex procedures for deciding who is sent involuntarily. The facts say otherwise. Federal employees have been first on the scene at virtually every crisis the Navy has faced in recent memory. At Norfolk Naval Shipyard, where I work, our motto is “Any ship, any time, any place”, and we proudly call ourselves the nations 911 service. When the USS Cole was bombed, we got the call asking us to assess structural damage and assist in body recovery. We summoned an entire team of mechanics, engineers, etc., planned the mission, briefed the team, and had them on a plane with materials and equipment in less than 24 hours. Our employees literally spent their off duty hours sleeping on cots on deck. In stark contrast, contractors hired to support the war in Iraq found themselves unable to provide adequate personnel because they had trouble finding enough people with the right skills who were willing to go, and insurance companies weren’t willing to cover them. How is this possible if the Civil Service rules are such a hindrance? The answer is they are not! Anyone who looks will find exceptions throughout Title 5 that suspend these rules if/when they interfere with an agency's ability to perform its mission in emergencies. The employees of Norfolk Naval Shipyard are represented by Unions, as are many DoD activities, but the procedures covering work assignments alluded to by Dr. Chu have been in place for years in collective bargaining agreements. If DoD needs the flexibility to get important things done quickly, they could easily accomplish this by defining a threshold for situations that affect national security and allowing only post-implementation bargaining for those situations. Instead, they have chosen to change almost all parts of Title 5 that relate to rights of employees and their Unions. These rules diminish employees’ rights of due process, effectively eliminate a Union’s right to collective bargaining, and virtually eliminate the Civil Service pay system. Congress should be highly offended by this violation of trust. While the existing system is not perfect, a few simple changes would accomplish everything DoD claims to need. Having read proposed rules, I still have no idea what they are. For the most part they state a general intent followed by a comment that more detail will be provided later in “implementing issuances”. I am deeply concerned that this strategy aligns with one revealed by another document. The document is a letter from former OPM Director Kay Cole James to Secretary Rumsfeld, dated March 19, 2004. Below is a excerpt from a section of the letter where Ms. James chastised Secretary Rumsfeld for releasing too much detail in his initial release of NSPS concepts: “In point of fact, the issuance of broad, “enabling” regulations will give you far more internal flexibility as you implement NSPS. Once those enabling regulations are published in the CFR, you will be in a position to issue as many standardized, detailed internal NSPS implementing directives as and when you see fit, including the document you have provided for us as comment - generally without further public comment, formal collaboration with Unions, or OPM approval.” While Public Law 108-136 does give DoD unilateral authority to implement any NSPS proposal a Union does not agree with, it also requires that DoD notify Congress, provide Congress with an explanation of the proposals, any changes proposed by the Unions that were adopted, and a good reason why implementation is appropriate. The James to Rumsfeld letter clearly reveals a strategy to use vague regulations followed by implementing issuances as an attempt to avoid the Congressional notification and Union collaberation requirements. I do not believe Congress intended that DoD include Unions in the process to develop the process for changing employment conditions (not that they did, but that's another story), but give them no involvement in the actual changes. Nor do I believe Congress desired to be kept in the dark with regard to its oversight role. DoD has proven itself untrustworthy of the broad authority Congress granted it to establish NSPS. Congress should, therefore, rescind DoD’s NSPS authority and only consider specific changes to Title 5, to include hearings where alternative points of view can be heard. My detailed comments that follow are limited by the aforementioned lack of detail in the proposed regulations. Subpart B - General Comments Rewriting an entire classification sytem that took years to refine is a complete waste of the taxpayer's money, especially when it is being done by DoD and only for DoD. Should the Administration gets its stated wish for a system similar to NSPS for all departments, the waste would be compounded. Spending billions of dollars of taxpayer's money for a result that will only serve to demoralize employees is not in the public interest. The system has worked well for years and, comments by certain administration officials notwithstanding, is neither outdated nor obsolete. OPM was created so the government would have expertise residing in one place serving all departments. This is a sound business practice based on the economy of scale. It should remain that way. Subpart C - General Comments The prevailing comment about the proposed Pay Banding system from employees at Norfolk Naval Shipyard can be summed up in one representative statement: "What makes them think turning teammates into competitors is a good idea?" This system is not forward thinking, it is the opposite. The business "Gurus" of today do not advocate this type of system - they recognize the value of teamwork. We have another huge problem in DoD we call revitalizing the workforce. When DoD downsized as the Cold War threat was eliminated, a generation of less senior employees lost their jobs. We were eventually able to start hiring again, but now we are left with a workforce made up of older employees in their late forties and fifties, and younger ones in their twenties and early thirties. Most agencies, including my own, have recognized the need to pass on the experience and knowledege of the older workers to the younger ones. This need is urgent now, because many of the older ones are eligible to retire. I can think of no better way to destroy this effort than to adopt Pay Banding. From what little our employees know about it, they already recognize that sharing knowledge with coworkers and assisting them in other ways will increase the coworker's value to the organization, which will, in turn, give them a higher rating and thus a higher salary. Why would they want to do this when both employees are being paid out of the same fixed pool? They know that by helping others they will only hurt themselves. The Pay Banding demonstration projects that are being touted as success stories all have one thing in common. Success was the goal, therefore they were fully funded, and then some. Advocates have been quick to publish the positive comments from top performers, but they do not show the whole story. One simple fact says it all - the average employee made more money in the Pay Banding demos than he/she would have made in the normal GS system. On the surface this might sound good, but it is mathematically impossible without putting more than the normal amount into salaries. The NSPS plan on the other hand, is not designed to boost salaries. OPM Director James acknowledged this and much more in her comments (below) to Secretary Rumsfeld's original draft concepts: "Career Groups and Pay Band levels are tied to the continuation of the existing 15-grade General Schedule classification and pay system. It is based on the assumption that OPM will continue to maintain and upgrade the GS system, which may or may not be true. As a result, the proposed structure fails to fully utilize the flexibilities available to "deconstruct" the GS and bring Federal occupations into better alignment with the 21st century world of work. Grouping professional, scientific, engineering and administrative occupations into the same Career Groups and bands misses the opportunity to cluster your occupations to make market sensitive pay decisions." This desire to make "market sensitve pay decisions" also appears in section 9902(e)(4) of Public Law 108-136. "To the maximum extent practical, for fiscal years 2204 through 2008, the overall amount of money alloted for compensation of civilian employees of an organizational or functional unit of the Department of Defense that is included in the National Security Personnel System shall not be less than the amount that would have been allocated for compensation of such employees for such fiscal year if they had not been converted to the National Security Personnel System..." Anyone with a basic understanding of law knows "To the maximum extent practical" equates to "If the Secretary of Defense feels like it". It also effectively removes DoD employees' pay from Congress' control and places it firmly in the Secretary's control. I submit that the demoralizing effect Pay Banding is already having on employee morale far exceeds any potential gains. Subpart F 9901.611, pargraph (3)(b) - Excluding the DoD placement programs from the Merit Systems Protection Board's jurisdiction for Reduction in Force (RIF) appeals is not in the spirit of due process. This rule says, in effect, that DoD's failure to follow DoD's own rules should be appealable to DoD only. This lack of fair due process was the very reason the Civil Service Reform Act of 1978 was established. That act abolished the Civil Service Commision and spread its authority to OPM, FLRA, and MSPB, and others. This was based on the learned lesson that it was a bad idea to have any organization that makes rules and enforces its rules, also have the power to decide whether its enforcement decisions violate its own rules. Have we learned nothing from the past? Subpart G 9901.704, pargraph (d)(3) - No one knows what this actually means until more details are published, but on face value I am very suspicious of a rule that excludes adverse action appeal rights for employees terminated on conditions made at the time of employment. I hope I'm wrong, but NSPS gives DoD such broad authority I fear that future "implementing issuances" might require that new hires sign a waiver of some rights that we are unaware of at this time. Subpart H This entire concept is against the public interest. DoD is requiring MSPB to enforce a separate set of rules for DoD cases and further requiring that MSPB give special deference to DoD cases. This is a bad idea whether its for DoD, Homeland Security, or any other department. It would severely impact MSPB's ability to handle the rest of its caseload. The existing system, while not perfect, at least recognizes the economies of scale - one set of rules and one enforcement agency for cost savings, fainess and consistency. Subpart I - General Comments These rules look like they were written by different people with very different views about labor relations. Sections 9901.901 through 9901.904 are mainly just general information that restate the legislative authority and paramaters of NSPS. Then alongs come sections 9901.905 through 9901.910, which cut the heart right out of a Union's right to collective bargaining and strip away all but the appearance of due process. A paraphrasing of these sections would read something like this: "The Secretary of Defense is God. He writes the rules, has full control of enforcement of the rules, and decides if and when anyone can dare challenge him. Additionally, he has decided that Unions have no right to anything other than to exist and complain. Such complaints will be heard but ignored, except in the unlikely event the Secretary agrees with them." This is followed by the rather benign sections 9901.911 through 9901.928. With a few exceptions, they restate and/or clarify existing laws. If not for the unknowns, such as yet-to-be-issued regulations that will define the procedures and authority of the National Security Labor Relations Board, I would have little problem living with them. Apparently someone in DoD was affected by the Union outrage and subsequent warnings from Congress that arose when the first draft of proposed rules was released on Februyary 27, 2004. Or perhaps they listened to OPM Director James' warning that said, "In addition, other elements of the proposal - for example, those dealing with union elections and dues witholding - lack a clear and defensible national security nexus and jeopardize those parts that do." It is a tragic shame that the cost to implement NSPS, most of which has no clear nexus to DoD's national security mission, will far exceed the cost of keeping the aircraft carrier John F. Kennedy on active duty, which is indeed of vital interest to national security. Subpart I - Specific Comments 9901.904, paragraph (a) - I have no idea why former employees fired because of a ULP, who are technically not even employees once they are fired, are covered by this section, but I look forward to the answer. Presumably it will come with "implementing issuances". 9901.905, paragraph (a) - This section gives the appearance of a right. The best I can determine, it gives a Union the right to appeal decisions regarding whether a provision of a collective bargaining agreemnent is superceded by an NSPS rule. Then it gives the Secretary the authority to overide that decision at his sole and exclusive discretion. 9901.907 and 9901.908 - The rules that establish the National Security Labor Relations Board (NSLRB) go against the public interest and violate the trust Congress placed in DoD when it approved NSPS. DoD promised NSPS would preserve third party review. This "third party" is hand picked by the Secretary of Defense. The regulations allow him to add as many members as he desires, which means if he doesn't like their decisions he can keep adding members until he starts getting favorable decisions. He can also fire any of them whenever he pleases for being inefficient, neglectful of duty, or malfeasant, which are vague paramenters that he gets to define later. This is no one's idea of an independent third party. Furthermore, for judicial review (appeal) of the Board's decisions, the Federal Relations Labor Authority (FLRA) will make the call, but the threshold for getting to FLRA is written by the secretary. The standards for overturning the Board, which are also written by the Secretary, always place the burden of proof on the requesting party, i.e., the Unions, who will also have to prove their case with the high standard of substantial evidence. This Board is a bad idea whether its for DoD, Homeland Security, or any other department. The existing system, while not perfect, at least recognizes the economies of scale - one set of rules and one enforcement agency for cost savings, fainess and consistency. This Board would also be given much of the authority currently held by the FLRA. The FLRA is not held in high esteem by either management or Labor. Management doesn't like them because they often rule against the agency, mainly because most issues brought before the FLRA are filed by Unions. Unions tend to dislike FLRA because their threshold for issuing complaints is perceived to be too high, which means many Unfair Labor Practice charges are rejected. But these arguments support retaining FLRA's current authority. Any third party has to rule against one side or the other. If, after many cases, both sides view them unfavorably, perhaps that means the system is working. Aside from my inherent opposion to even having a NSLRB, there is another concern. The Labor Relations section of NSPS goes into effect this July for all of DoD, but Board doesn't exist yet, and its regulations and rules of procedure are yet to be issued. With the proposed system, NSPS labor relations will be nonexistent in DoD until these things are done. I fear DoD would be content with this situation and in no hurry to remedy it. 9901.909, paragraph (a) - Like Subpart H, once again DoD is requiring another federal agency to enforce a separate set of rules for DoD cases and further requiring that agency give special deference to DoD cases. I repeat - This is against the pulic interest. It's a bad idea whether its for DoD, Homeland Security, or any other department. It would impact FLRA's ability to handle the rest of its caseload. The existing system, while not perfect, at least recognizes the economies of scale - one set of rules and one enforcement agency for cost savings, fainess and consistency. paragraph (b) - Comments to paragraph (a) of this section also apply here. In addition, DoD is giving its own handpicked labor relations board the "final and unreviewable" authority to decide who has jurisdiction on matters filed with the FLRA. DoD won't even allow FLRA to decide whether FLRA has jurisdiction over a case filed with FLRA? This shows why Congress should take NSPS away from DoD. At the very least, its good reason to scrap the NSLRB. 9901.910 - This section is a rewriting of the Management Rights at 5 USC, section 7106. All the changes weaken Union Rights and/or strengthen management rights. Not that it would matter with a NSLRB handpicked by the Secretary entrusted to interpret it. Notable changes to 5 USC, 7106 are as follows: paragraph (a)(3)(b) and (c) -Takes away Union's right to bargain over procedures in paragraphs (a)1 and (a)2 and replaces it with a toothless right to consult. paragraph (a)(3)(d) - Eliminates the requirement that mangement bargain prior to implementation. Also allows management to notify Unions of its plans at its leisure, up to and including when implementation takes place. paragraph (e)(2)(i) - Raises the threshold for when appropriate arrangements bargaining must take place for paragraphs (a)(1) and (a)(2). The new threshold requires that the effects of a change be foreseeable, substantial, and significant in terms of duration and impact on employees. The "duration" standard would effectively eliminate a Union's right to bargain at all over managements actions that were not more or less permanent. Once again, the standards would be defined and enforced by the Secretary and his NSLRB. paragraph (e)(2)(ii)(A) - Eliminates a Union's right to bargain appropriate arrangements for assignment of shifts and overtime. These are among the most important areas where collection bargaining needs to be preserved due to their significant impact on employees and the potential for abuse via preferential treatment. paragraph (f) - States that any negotiable management right in (a)(3) would be rendered non-negotiable if it is also covered by (a)(1) or (a)(2). Almost any subject in (a)(3) is also covered to some degree by a subject in (a)1) or (a)(2). What management right is not somehow linked to mission, budget, organization or assignment of work? DoD learned this "bait and switch" from a late 1980's interpretation of the existing Title 5, Section 7106. It was eventually overturned by the courts, who held that it was so ridiculous that a rational person could not possibly read the statute that way. Apparently DoD enjoyed that brief time before it was overturned when they had a "when all else fails" way to avoid bargaining. 9901.914, paragraph (a)(2)(iii) - Excludes an employee's right to Union representation during investigations by organizations whose mission includes the conduct of criminal investigations, such as the Naval Criminal Investigative Service. The exclusion should be based on the purpose of the investigation, not the mission of the agency doing the investigation. It should only apply during actual criminal investigations. There are many situations in which employees are interview by the listed agencies for reasons related to employment conditions that are not criminal investigations. Employees should have the right to representation in such situations. paragraph (a)(2)(i) - Clarifies existing law covering a Union's right to be present during formal discussions. The current statute and case law are burdensome and difficult to understand, so clarification is warranted. My concern is the elimination of the Union's right to be present when existing policies are discussed. This is an area where Unions best serve the public interest - clarifing misunderstandings and misintepretations of policies by managers and supervisors who have quite enough to do with their real jobs, therefore do not have the time and knowledge to be experts in personnel policies. paragraph (a)(4) - Requires Union officials acting in their capacity as a representative to be held to the same standards of conduct as any other employee. This is not a concern if "conduct" means what it should - such things as abusive language, professional coutesy, etc. But it will be a real concern if the Secretary and/or his NSLRB interpret it too broadly to include behaviors that would change the current balance of equality between labor and management officials. The standards of conduct for a Union representative when meeting with management should be no more and no less than the standards for the manager's conduct with the Union representative. 9901.915, paragraph (c)(2)(ii) - If s petitioning labor organization has negotiated payroll deduction of dues, then wins the election as exclusive representative, the agreement should remain in effect until a new one is negotiated. 9901.916 - My objection is having the NSLRB in charge of Unfair Labor Practices. They are not an independent third party, as previously stated, so this function should stay with the Federal Labor Relations Authority. 9901.917 section (d)(2) - Like section 9901.910, this raises the threshold of the duty to bargain by requiring that the effects of a change be foreseeable, substantial, and significant in terms of duration and impact on employees. The "duration" standard would effectively eliminate a Union's right to bargain at all over managements actions that were not more or less permanent. And once again, the standards would be defined and enforced by the Secretary and his NSLRB. 9901.918 - This appears to allow management to require muti-unit bargaining for Unions, but Unions may only request it, with the Secretary have the sole and exclusive discretion to grant the Union's request. This would give management the opportunity to forum shop for advantage.