| Comment Number: | OL-10510007 |
| Received: | 3/15/2005 11:31:21 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:
I, with many of my fellow employees, am concerned that funds have not been provided to stand up operational costs for implementation of NSPS. Agencies who are required to implement NSPS changes will be required to fund it from the existing budgets. Everyone has to be trained on NSPS but no additional funds will be available for that training. There have been rumors of a wide-ranging RIF within the Navy to pay for NSPS. The Army’s plan for funding NSPS implementation furloughs some employees for 2 months! Another very disturbing feature of NSPS is that actual procedures for NSPS functions will be promulgated via “DOD implementing issuances.” This occurs in over 130 cases, yet such issuances are not available for review by anyone. I also believe that these proposed NSPS regulations exceed the authority Congress granted in the NSPS statute in the following ways. The Department’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 Department seeks to declare such issuances to be non-negotiable and superior to collectively bargained agreements. Essentially, this provision will provide the Department 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 Department’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 Department declares that management will now have the power “to take whatever other actions may be necessary to carry out the Department’s mission,” a clause that literally has no definition or limitation in the regulation. This proposed management “right” effectively ends collective bargaining in the Department, in direct violation of Congress’ specific order to the contrary, as management can literally apply it to any situation in the Department to deny bargaining. In 5 U.S.C. 9902(m)(6), Congress required the Department to ensure that any new labor relations system provided for an independent third party review of the Department’s decisions. However, the Department’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, 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 Department’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. 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 Department. In this proposal, the Department reserves for itself the right to unilaterally reverse the decision of an MSPB Administrative Judge (AJ), merely because the Department does not agree that the decision was correct. DoD and OPM should overhaul the proposed NSPS and work collaboratively with employee unions to develop a new system, as Congress directed.