| Comment Number: | OL-10511110 |
| Received: | 3/16/2005 2:04:03 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 Comment: NSPS was authorized under the National Defense Authorization Act of Fiscal Year 2004, passed by Congress in November 2003. There is, however, a significant difference between the skeletal authorities that Congress approved and the sweeping new authorities that Secretary of Defense Donald Rumsfeld is now requesting. During congressional hearings on this issue, the Secretary asserted that the Pentagon's broad mission requires greater "flexibility" in hiring, disciplining, compensating and assigning civilian personnel. In short, the Secretary wanted the same "chain of command" authority over civilian personnel as he enjoys over uniformed military personnel. Neither the Secretary nor his subordinates offered any concrete examples to explain how union rights might have impinged on the Pentagon's mission in the past. Although Congress acceded to the broad requests lodged by the DOD, it attached certain strict conditions--including a specific requirements that DOD observe legal requirements of labor relations statutes and that they involve duly elected unions in the development of the new system. The Pentagon has done neither. Although DOD has convened a dozen or more meetings to "brief stakeholders" and to "solicit the views" of unions, there has been no information sharing from DOD and absolutely no response to repeated union requests for specific information as to exactly what problems management wishes to address with the adoption of NSPS. In fact, the current proposed regulations still do not provide the specifics required for adequate comment. One of the Pentagon's objectives in advancing NSPS is to construct a so-called "pay for performance" system. This is a case of deceptive labeling. Various government agencies have been testing performance pay systems for more than 20 years and invariably, the results have been that the majority of workers feel cheated when advancement, promotion and pay decisions are given over to the sole discretion of a supervisor. The process typically reduces salaries and morale. It is too autocratic and eliminates any redress for decisions made on the basis of considerations other than merit. For these reasons, I oppose the implementation of NSPS and I urge you to act to instruct the Secretary of Defense to halt any further development of NSPS unless and until the Pentagon is willing to substantively address the issues raised by the United DOD Workers Coalition and to provide the specific regulations and instructions to allow adequate review of the new personnel system. General Comment: 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. General Comment: If a civil servant is deployed to a war zone, will they then be considered a “veteran”? If the military folks in the arena receive a medal or ribbon that signifies their existence in an area of the world that was in danger, then why wouldn’t the civil servant in the area be treated equally? Will the civil servant in the area be given a tax break? The military pay in a war zone is not taxed (I think the first $5600 a month is tax free); will the civil servant receive the same benefit? Currently, the civil servant does not realize either of these benefits. Subpart A, section 9901.106(a)(2)(ii): The Secretary of Defense has sole and exclusive discretion to determine the number of employee representatives to be engaged in the continuing collaboration process. This allows the secretary to identify a low number of representatives thus pitting the Unions against each other for representative spaces. Subpart A, section 9901.106(a)(6): Nothing in the continuing collaboration process will affect the right of the Secretary to determine the content of implementing issuances and to make them effective at any time. This catchall law would allow the secretary to basically do anything he wants, whenever he wants, without regard to a collaborative effort. Subpart B, section 9901.212(d): This section references another section (9901.514 Non-citizen hiring) that has nothing to do with pay schedules and pay bands. Subpart B, sections 9901.221 and 9901.222: The classification process does not include any provisions for collective bargaining. Subpart C, section 9901.311: The lack of specifics in the new pay system makes it very hard to comment on the new pay system. What are the pay bands? What are the levels of pay in each pay band? What is the maximum pay in each pay band? Subpart C, section 9901.311: To adequately provide comments on the proposed pay system the DOD should provide their implementing issuances prior to enacting the NSPS rules. Once the issuances are provided the normal 30/30/30 process should be in effect. Obviously, the DOD, much like Department of Homeland Security, plans on waiting until the 30/30/30 time frame has passed prior to implementing their issuance with specifics on the new pay system. This is blatantly circumvents the entire process of commenting, collaborating, etc. Subpart C, section 9901.312: The Secretary now has the authority to establish pay limitations, as opposed to Congress. Subpart C, section 9901.313: The wording is very misleading. It appears that employees are protected from losing money under the new pay system. The statement is true employees (collectively) will not lose money because the money allocated for compensation will not be less than the amount without NSPS, but individually there is no guarantee that you will not be affected. It specifically says that the “aggregate employees” are not disadvantaged. There is no guarantee, individually, that you will not be affected. These words only provide for the minimum funding for pay raises. The words lack specifics to guarantee the individual employee minimum pay raises, including step increases, for acceptable performance. The words also say to the maximum extent practical, which gives the DOD and out from providing the money necessary for minimum raises. Subpart C, sections 9901.301 to 9901.373: Pay for performance as outlined addresses all raises coming from an established pot of money. This means to give the high performer a bigger raise, the money comes from someone else. What if everyone is performing at a high level? Pay raises for managers come out of the same pot of money. There are no checks and balances in the proposed system to prevent favoritism, nepotism, cronyism, etc. Subpart C, sections 9901.301 to 9901.373: How are people in development jobs 5/7/9, 7/9/11, etc. affected? There are no words to address personnel in these positions. Will promoting these people, as promised them during the hiring process, take money away from acceptable performers? Subpart C, sections 9901.301 to 9901.373: Congress will not control Pay Parity. This allows DOD to give us lower raises then they give to the military (something they have been trying to do for years, but congress has not allowed it). These changes will prevent congress from ensuring pay parity. Subpart C, sections 9901.331 to 9901.334: If locality pay (local market supplements) is based on the cost of living of a geographical area, how can it legally be withheld or dispersed at different rates based on occupation? How does this agree with the Federal Employees Pay Comparability Act of 1990 (FEPCA)? In that same law, Congress gave rating-based performance awards a specific legal authority for the first time, but excluded locality pay from award calculations? Has there been a change to FEPCA? Subpart C, sections 9901.301 to 9901.373: The step raises in the Civil Service system are like the longevity raises the military receives. The DOD is not proposing to change the way the military is paid, why are they changing the way the civil servant who supports the military member is paid? Subpart C, 9901.322: This paragraph contradicts paragraph 9901.313. After addressing the expected compensation comparability in 9901.313 which leads one to believe that we will not lose money as a result of NSPS, 9901.322 makes it clear that an employee may have their rate of pay reduced due to availability of funds and mission requirements. This will allow the DOD to reduce our Congressionally approved pay raises to a lower amount. While NSPS purports to be for the purpose of rewarding performance in the workplace, the reality is that a high-performing and acceptably performing employees can have their pay cut simply because the DOD has decided to use the money for mission requirements. Subpart C, Section 9901.352: Under Reassignment - Involuntary moves should NEVER result in a reduction in pay under any circumstances. Subpart D, Sections 9901.401 to 9901.409: The current appraisal system we use is a simple sat/unsat and we typically are late in getting these type of appraisals completed. If or when the appraisal system changes, the supervisors will fall even further behind. This affects both workers and supervisors, everything that is created that takes time away from the supervisor will eventually affect the workers and take time away from them, when the supervisor cannot properly supervise, train, mentor, etc. Subpart D, Sections 9901.401 to 9901.409: How will the training required by these regulations be funded? Subpart E, Section 9901.514: There might be times in other countries where the DOD would need to hire non-citizens but this requirement should be changed to read "outside CONUS". If the positions are located in the United States, only US citizens should hold them. Priority should be given to US citizens for jobs outside the US. Subpart F, Sections 9901.601 to 9901.611: The current retirement system implemented for Civil Service personnel (FERS) is not equivalent to that in private industry. For example, the retirement annuity computation formula for Northrop Grumman Corporation is 1.667% times the highest salary of the previous three years. FERS on the other hand provides on 1% of base pay. Industry employees have the same or better 401k and social security plans as well. For the employee, the total package of Pay, Benefits and retirement plan comes down to risk associated with the tenure of employment. That is to say that jobs with increased risk of lay-off, or "RIF" should carry a commensurate increase in pay, benefits and retirement. The NSPS, specifically with regard to workforce shaping, increases the government employee's risk of losing their job without a commensurate increase in pay, benefits and retirement seen in private industry. If the employees are expected to perform under commercial standards and at the same risk of job loss, then the compensation, or at least the ability to bargain for additional compensation by the employee, must also be factored into the system. Subpart F, Sections 9901.601 to 9901.611: By redefining competitive area (in reference to RIF situations), the DOD will be able to target groups of employees. In a RIF situation where these employees are selected to be released, because the competitive area is so narrowly defined, these employees will not have the chance to bump or retreat to other areas, unless offered a vacant position at the Department’s option. Subpart F, Section 9901.607: The wording is very misleading. Tenure is the first criteria for a reduction in force. However, an experienced employee recently assigned a new job could be the first to go in a RIF, without retreat rights to their previous job. Subpart G, Sections 9901.714 and 9901.715: Our current system provides an employee with a 30-day notice and 15 days to reply. The new system changes the time requirements to 15-day notice and only 10 days to reply. This will put undue time requirements on employees and anyone that would be representing them. With the new rules for non-disclosure of information this will make it virtually impossible for employees to be able to defend themselves with questionable or untrue allegations. Subpart G, Sections 9901.714 and 9901.715: Reference Adverse Actions, how can the 15 day advanced notice period and the 10 day reply period run concurrently? The period to reply runs out before the advance notice period ends. This does not make sense. The period should not run concurrently, but serially. Subpart H, Section 9901.807: The DOD is violating Federal Law with this section. The provisions of the National Defense Authorization Act of Fiscal Year 2004 prohibit the majority of the changes in the Appellate Procedures proposed by NSPS. In fact, the National Defense Authorization Act of Fiscal Year 2004 specifically states, “nothing in this subsection shall be construed to authorize the waiver of any provision of law. For example, the proposed regulations give the Department sweeping authority to override or delay interim relief granted by the MSPB (the National Defense Authorization Act of Fiscal Year 2004 simply states that interim relief can granted by the MSPB), the proposed regulations require a preponderance of the evidence (this legalese is different than the National Defense Authorization Act of Fiscal Year 2004 which simply requires an employee to raise substantial questions of fact), the proposed regulations provide limitations on when the Department will be responsible for employee’s attorneys fees if the employee is the prevailing party (the National Defense Authorization Act of Fiscal Year 2004 does not authorize this change). The DOD does not have the authority to make the changes proposed in this section and quite frankly they are prohibited from making these changes. Subpart I, Section 9901.905: This section references time limits in section 9901.908, there are no time limits discussed in section 9901.908. Subpart I, Sections 9901.901 to 9901.928: Contrary to the National Defense Authorization Act of Fiscal Year 2004 the DOD did not afford employee representatives the opportunity to have meaningful discussions during the development of the proposed Labor-Management Relations. Subpart I, Section 9901.907: The National Defense Authorization Act of Fiscal Year 2004 requires the DOD to provide for independent third party review. The proposed National Security Labor Relations Board with Secretary appointed members is not an independent third party. Subpart I, Section 9901.901 to 9901.928: The proposed changes in this section severely overstep the authority of DOD as granted by the National Defense Authorization Act of Fiscal Year 2004. There are no allowances in the National Defense Authorization Act of Fiscal Year 2004 to modify management rights or employee rights to the extent proposed. These changes strip Unions of the ability to provide basic representation to employees, with the right to appeal decisions to an independent third party, and will undermine employee’s rights.