| Comment Number: | OL-10511553 |
| Received: | 3/16/2005 4:01:41 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:
The proposed NSPS regulations are not designed with the best interests of the Department’s civilian employees in mind, and have nothing to do with national security. Instead the system is no more than an attempt to destroy the Department’s unions, regardless of the consequences. Furthermore, the proposed NSPS regulations violate Congress’ orders concerning the development of the system. The proposed NSPS regulation 9901.103 changes the definition of a number of commonly understood terms such as, Performance and Unacceptable Performance. These proposed definitions seek to add “behavior and professional demeanor” as elements under which Department employees can be evaluated. As these elements are subjective, at best, and provide managers with an incredible amount of discretion. As determinations on what constitutes acceptable “behavior and demeanor” varies quite literally from person to person, the system results in standards which very, quite literally, from manager to manager. Such a system would violate 5 U.S.C. 2301(b)(8)(A), which Congress specifically forbade the Department from changing. 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. Further, under this proposed regulation, the members of this board would be appointed solely by the Secretary of Defense, who can “pack” the Board with as many members as desired, until the Board issues decisions the Secretary agrees with. This is little more than a “kangaroo court.” 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. 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! The proposed regulation 9901.807 specifically violates the direct orders of Congress concerning the right of the MSPB to hear appeals of Department decisions. Congress ordered that the MSPB be provided the right to “order such corrective action as the Board determines appropriate” using the standards in 5 U.S.C. 9902(m)(5)(A-C). However, the Department’s proposal ignores the Congress, and states that the MSPB cannot modify the Department’s decision unless the “penalty is so disproportionate to the basis for the action as to be wholly without justification.” Furthermore, the Department has proposed limiting mitigation by stating, ”when a penalty is mitigated, the maximum justifiable penalty must be applied.” This denies employees the protections guaranteed by Congress in their appeals. As these proposed regulations are mere union-busting and violate Congress’ explicit orders, the entire proposal should be scrapped.