| Comment Number: | OL-10512033 |
| Received: | 3/16/2005 8:14:19 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:
1. Potential conflict of interest - Management could compete against non- management employees for pay increases. Nothing in the regulations prohibits supervisors and other managers from being placed in the same pay pools as non-management employees. This means that supervisors could compete against the employees they rate (and provide pay increases and bonuses to each year) for the same pay pool funds. This is an obvious conflict of interest. Management could intentionally hold down the ratings and pay increases of employees to ensure that more funds are available for supervisors and managers in the pay pools. Section 9901.342(b) “Performance Pay Pools” states: “DoD will issue implementing issuances for the establishment and management of pay pools for performance payouts.” Since no details exist in this regulation regarding the pay pool structure, the possibility that managers and non-managers could be in the same pay pools is a real concern. This system would result in the distrust of management, decreased morale, and lower productivity, ultimately harming national security. No changes should be made to the current pay system used by DoD agencies until complete and detailed proposals are provided, and a full comment and review period is completed, followed by a full collective bargaining process with the unions representing DoD employees. 2. Potential for abuse of pay pool funds – No limits exist on the amount of pay increases, bonuses, and other awards that management can award themselves or others, leaving little or nothing for the remaining employees in the pay pools. Nothing in these regulations limits the amount of pay increases and bonuses that management can award themselves or others each year, other than the maximum salary rates of their respective pay bands, and the amount of money in the pay pools. Since pay pool funding is limited, once the funding is gone, no other payouts can be made. If managers and top performers are awarded large pay increases, bonuses, Extraordinary Pay Increases (defined in section 9901.344 and on 7560), Organizational Achievement Recognition (described on page 7560), and other payouts from pay pool funds, the pay pools could be depleted, leaving nothing for the remaining employees. Section 9901.342(c) “Performance Shares” states: “DoD will issue implementing issuances regarding the assignment of a number or range of shares for each rating of record level, subject to paragraph (c)(2) of this section.” Since no details exist regarding the range or value of shares, the possibility exists that managers or other “top performers” could be awarded many shares worth a significant portion of the pay pool funding. For example, in a pay pool of 20 employees, with $20,000 of available pay pool money, management could decide that the top 4 performers deserve $5,000 each, leaving nothing for the 16 other employees in the pay pool. This is clearly unfair, and would result in distrust of management, decreased morale, and lower productivity, ultimately harming national security. No changes should be made to the current pay system used by DoD agencies until complete and detailed proposals are provided, and a full comment and review period is completed, followed by a full collective bargaining process with the unions representing DoD employees. 3. Satisfactory and higher performing employee’s pay could be frozen. Nothing in these regulations prohibit management from freezing the pay of fully successful, highly satisfactory, excellent, or other successful employees. One way to freeze a fully successful employee’s pay is with “control points”, which can be implemented in each pay band to freeze salaries at a certain level. Section 9901.342(d)(3) states: “DoD may provide for the establishment of control points within a band that limit increases in the rate of basic pay. DoD may require that certain criteria be met for increases above a control point.” The regulations also state on page 7560: “An example of such a control point is a requirement for the employee to have achieved the highest performance rating.” If a control point exists that requires employees to receive the highest rating to receive a pay increase, employees who get the 2nd highest rating and lower would receive nothing, and their pay would be frozen, possibly for the rest of their career. Another way that the DoD can freeze satisfactory employee’s pay is by not increasing the minimum rate of a pay band. Section 9901.322(d) states: “DoD may adjust the minimum and maximum rates of a pay band by different percentages. Section 9901.323(a) states: “… employees with a current rating of record above “unacceptable” will receive a percentage increase in basic pay equal to the percentage by which the minimum of their rate range is increased.” If the DoD does not increase the minimum rate of a particular pay band, fully successful employees in that pay band could receive nothing. This is clearly unfair, and would result in distrust of management, decreased morale, and lower productivity, ultimately harming national security. No changes should be made to the current pay system used by DoD agencies until complete and detailed proposals are provided, and a full comment and review period is completed, followed by a full collective bargaining process with the unions representing DoD employees. Subpart C - Pay and Pay Administration Page 7582, Section 9901.333 - Setting and adjusting local market supplements. This section states that DoD has the sole and exclusive discretion to set and adjust local market supplements, which if implemented, will replace the current locality pay system. Currently, locality pay is set and adjusted using salary data and input from OPM, OMB, the Labor Dept., and the Federal Salary Council, which includes employee representatives. This system has, for the most part, resulted in reliable, fair, accurate, and competitive locality pay rates, which have allowed the DoD to hire and retain qualified employees in every job category all across the country. Replacing this reliable system with a sole and exclusive decision by DoD to set local market supplements seems arbitrary, unfair, and irresponsible. It will likely result in uncompetitive pay rates in critical jobs in many areas, decreasing the DoD's ability to retain qualified employees, and impacting national security. I recommend that the current locality pay process be retained to ensure fair, reasonable and competitive pay rates based on valid data. I write to express my concerns about changes to work rules in the Department of Defense (DoD). The proposed regulations, known as the National Security Personnel System (NSPS), were printed in the Federal Register on February 14, 2005. This message will be sent to both DoD and my representatives in Congress. I have worked for DoD for years. I am angry that these proposals seem to treat the employees who help defend our country as the enemy. Most DoD employees work hard and are committed. I believe that mistreating the employees will hurt the agency’s mission. I am very upset by NSPS. This system will change the way workers are paid, evaluated, promoted, fired, scheduled, and treated. These rules would create a system in which federal managers are influenced by favoritism rather than serving the civil concerns of the American people. Annual Pay Raises Under the General Schedule and the Federal Wage System, employee pay was clear. It was funded by Congress and could not be taken away. However, NSPS will take away this certainty. Salaries and bonuses are funded by DoD. In the past – as recently as just last year – DoD did not fund its awards program. Given the agency’s miserable record on this issue, how can employees feel confident that our salaries and bonuses will be funded in the future? "Friend of the Supervisor" Pay System With the new patronage pay system, which DoD calls "pay for performance," the amount of a worker's salary will depend almost completely on the personal judgment of his or her manager. This system will force workers to compete with one another for pay raises, which will destroy teamwork, increase conflict among employees, and reward short-term outcomes. There is no guarantee that even the best workers will receive a pay raise or that the pay offered will be fair or competitive. This system will create a situation in which workers are in conflict with one another and afraid to speak out about harassment, violations of the law, and workplace safety problems. Furthermore, there will be no impartial appeal system to assure that everyone is treated fairly. Schedules and Overtime NSPS will allow managers to schedule employees to work without sufficient advance notice of schedule changes. This will make it extremely difficult for working parents to care for their children and family. It will also mean that abusive managers could harass employees with bad schedules or short notice. Overtime rotations can be canceled, which means that employees may not be able to plan adequately for childcare and other important responsibilities. Civilian Deployment Federal employees could be assigned anywhere in the world, even into a war zone, with little or no notice. I am proud to serve my country but I am also responsible for caring for my family and my personal obligations at home. We signed up for a civilian job. We did not enlist in the military. Today’s volunteer system works well. America is at war. We are fighting for democracy abroad. But the regulations are an attack on workers’ basic rights. Furthermore, NSPS will divert the attention of defense workers from the soldiers’ welfare to protecting themselves from abuse on the job. I urge you to force DoD to rethink this proposal. We need work rules that preserve fairness, serve the American people, and respect the rights of Defense Department workers. I am writing because of my concern about the so-called National Security Personnel System (NSPS) scheduled for implementation for more than 700,000 employees of the Department of Defense over the next year. As you know, NSPS was authorized under the 2004 Defense Authorization Act, 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 claiming. 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. I am certain that one of the Pentagon's objectives in advancing NSPS is to construct a so-called "pay for performance" system. This is another 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. Subpart I, at 6. National Security Labor Relations Board (p. 7569) of the Proposed Rule that appeared in the Federal Register on Monday February 14, 2005 “specifically solicit(s) comments on other alternatives, such as requiring (or entering into a service level agreement with) FLRA or some other organization to provide investigative and other services..”. My comments follow. The FLRA already has a staff trained, experienced and highly professional in performing investigative services in labor-management matters. The staff is composed of Labor Relations Specialists and Attorneys, and many, if not most, have been working exclusively in the federal sector for 15 years or more. The FLRA remain seasoned neutrals and are a dedicated cadre with proven ability to investigate labor-management issues, particularly unfair labor practice allegations. The FLRA staff should be retained and they tasked with carrying out the standards and functions required by NSPS. Save tax payer dollars by using the staff that Congress provided for and funded. I believe the proposed NSPS regulations will undermine the civil service and hurt the ability of Defense Department employees to accomplish the agency's mission. Please consider the following comments and delay final implementation until the proper steps have been taken to effectively involve the elected representatives of Defense Department workers. Subpart B Classification - Section 9901.201 to 99901.231 NSPS will replace the current government job classifications by grouping them into a few occupational categories with pay being set in "bands" with the new categories. Individual employees will be unable to appeal these newly-classified positions or the broad range of duties under the revised categories to a neutral arbitrator. Subpart C Pay, Sections 9901.301 to 9901.373 Defense Department employees should continue to receive the same annual pay and across-the-board adjustment that other GS/FWS workers receive. The individual pay increases for performance in the regulations should include guaranteed percentages so employees will understand the pay system and what their pay increase will be depending on their performance. Subpart D Performance Management - 9901.401 to 9901.409 To ensure fairness and accuracy, Defense Department employees should be able to appeal any performance rating to an independent grievance and arbitration process as they can do now. Subpart E Staffing and Employment - 9901.501 to 9901.516 The proposed regulations would replace longstanding provisions on hiring found in 5 U.S.C. Chapters 31 and 33 with unpublished procedures that will be prescribed at some future date through implementing issuances. Using this approach will allow the Defense Department to arbitrarily develop and administer new rules on staffing and employment that have not been available for public comment. This is especially troubling given the proposal to engage in non-citizen hiring to positions within NSPS. Our national security would surely be put at risk if Defense Department managers were able to exercise such hiring flexibilities. Subpart F Workforce Shaping - 9901.6012 to 9901.611 The Defense Department should not change the current layoff/RIF rules, which give balanced credit to performance and the employees' valuable years of committed service. Moreover, under he proposed regulations employment disputes over such matters would be unfairly limited to the Merit Systems Protection Board. Subpart G Adverse Actions - 9901.701 to 9901.810 The NSPS guiding principle on enhanced management flexibility would be undermined if the provision on mandatory removable offenses is retained. Due process and fairness demand that the independent body reviewing major suspensions and terminations be allowed to alter the proposed penalty if it deems deem the penalty to be unreasonable. The current standards approved by the courts to guide such bodies should be continued. Subpart H Appeals - Section 9901.801 to 9901.810 Over 25 years worth of case law will be discarded, where those precedents conflict with NSPS. This will eliminate the use of the Douglas factors, which third parties used to mitigate or overturn agency-imposed penalties. Subpart I Labor-Management Relations - 9901.901 to 9901.929 The labor-management law that has governed the employees' right to organize and engage in collective bargaining has worked well since 1978. There is no compelling reason to take away most of the collective bargaining rights or grievance rights. The Defense Department should not create a "company-dominated dispute board." Any dispute board must be jointly selected by management and the union. General - The classification system described in Subpart B of this proposed regulation contains very few specific details about the career groups, pay schedules, pay bands, and other classification structures and rules that will apply to DoD employees under this regulation, if implemented. Much more detail is needed to allow for a meaningful and thorough review and discussion of this regulation, as required by law. No changes should be made to the classification systems currently used by DoD agencies until a full comment and review period is completed, followed by a full collective bargaining process with the unions representing DoD employees. A personnel system without fair and appropriate classification structures and rules will be rejected by employees, and will result in distrust of management, decreased morale, and lower productivity, ultimately harming national security.