| Comment Number: | OL-10512124 |
| Received: | 3/16/2005 9:49:02 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 information below is the US Army Corps of Engineers consolidated input requested for the National Security Personnel System (NSPS). The comments address both the specific language included in the Federal Register as well as provisions we would like to see or not see in the DoD implementing issuances. While some of the comments below are from Corps Spiral 1.1 participants, others are derived from preliminary comments provided to us by the Director of the U.S. Army Engineer Research and Development Center (ERDC), who has been overseeing eight (8) pay pools and has participated in the DoD Laboratory Demonstration Program since 1998. Because there is much detail yet to be developed, we continue to want to support development of NSPS implementation policies and procedures. Specifically, the Corps remains ready to assist during the development of implementing regulations, specifically those developing compensation schemes and pay pool management policies and procedures. A firm schedule of training requirements and a listing of those areas that will be DoD or DA driven will allow us to be more successful in our planning, communication and implementation of NSPS. We need to have the DoD and DA developed NSPS Implementation Timetables as soon as possible so that we can plan and budget for implementation. Since the Corps is largely project-funded, any increases in costs must be passed on to our customers as overhead, therefore the timing of implementation as well as the training prior to implementation cannot be dealt with from a resource management viewpoint late in the Fiscal Year. Similarly, we strongly urge DoD and DA to allow the major commands (MACOMs) and their field components, particularly the major subordinate commands that are set to undergo transition as part of Spiral 1.1 to have an opportunity and a reasonable time to review and respond to the proposed NSPS implementation guidance that DoD develops. We believe there is a need for flexibility in areas where missions, funding, geographic diversity, pay pool make up, etc. are difficult to predict or to centralize. For NSPS to be successful within the Department of the Army, MACOMs need a degree of freedom that will allow adjustment when faced with these local- and MACOM- specific factors. For the Corps Southwestern Division (SWD), implementation in the September/October (training in August/September) time frame will be very difficult due to year-end activities and additional cost in the last months of the fiscal year. If it is possible to do so while still honoring our commitment to participate in Spiral 1.1, our preference is to implement NSPS for SWD not earlier than 6 November 05. Specific Comments on the Proposed Regulation. Page 7560, Rating Methodology: DoD. This paragraph includes two statements that cause concern. The first one “These recommendations will then be reviewed by the pay pool panel to ensure equitable rating criteria and methodology has been applied to pay pool employees.” The second is “The final determination of the rating, number of shares, and payout distribution will be a function of the pay pool panel process and will be approved by the pay pool manager.” The US Army Engineering and Research and Development Center (ERDC), based on their experience, is opposed to including the first process as mandatory. The establishment of a pay pool panel and its membership should be optional with the local Commander or Director. To make it mandatory may simply open the door for bargaining units who want to be included on the panel. Secondly, the local Commander or Director should be the final decision manager, not the pay pool manager since there may be several pay pools in the organization. 9901.334 Eligibility for pay increases associated with a supplement adjustment. Paragraph (c) states, “For employees who do not have a current rating of record, DoD will determine the amount of any pay increase under this section in accordance with implementing issuances.” We suggest that the DoD implementing issuances provide that employees who do not have a rating of record be allowed to receive a pay adjustment based on the rate range adjustment and the local market supplement. This has been the practice of the ERDC demonstration project to allow the General Schedule increase (all receive locality pay) and this has worked quite satisfactorily. That said, we also believe that there could be situations in which an employee should also be considered for a performance-based increase. For example, employees deployed in support of either military contingency operations or civil disaster relief could easily spend 6-8 months deployed and only the last 60 days prior to end of rating period are back at their permanent duty assignment. Failure to recognize outstanding performance by this group appears to run contrary to the intent of NSPS. Absent specific exceptions built into the implementing instructions we would suggest that MACOMs be given authority to grant exceptions in cases such as this. 9901-.342 Performance payouts Par (b)(2) states, “DoD may determine a percentage of pay to be included in pay pools and paid out in accordance with accompanying DoD implementing issuances.” We recommend that DoD provide Commanders and Directors flexibility in how the pay pool dollars are determined. We are comfortable with assigning a set percentage. However, there needs to be flexibility in determining the salaries this percentage is applied to. Many employees’ salaries will be capped at the maximum of the pay band upon conversion or within some period following conversion. These employees are not eligible for salary adjustments (performance based pay increases) and cannot contribute dollars to the pay pool. 9901.342(d)(4) requires that a payout be either in a pay adjustment or by means of a bonus. The net effect is an increased cost to the organization. In some organizations where funding is tight or where funds are reimbursable in nature from customers, we must watch our salary costs. The ERDC Lab Demo have chosen not to include the salaries of capped non-supervisory employees when calculating pay pool dollars in order to control costs. We recommend that Commanders and Directors have this flexibility under NSPS as well as the option to determine the amount of the bonus paid to capped employees. 9901.342(d)(3) provides for the establishment of control points within a band that limits increases in basic pay. We recommend that this provision either be eliminated or left as an option with the local Commander or Director. Such a provision was considered during the development of the ERDC demonstration project but was rejected. Their experience has shown that it is unnecessary for controlling salary escalation within the pay band and it will certainly make the performance-based pay provisions of NSPS much less appealing to employees, supervisors, and unions. 9901.342(e) provides for the prorating of performance payouts. 9901.3412(a) indicates that an employee with a rating of record above “unacceptable” will receive any pay increase resulting from that adjustment. Rather than have a provision for prorating a payout, we recommend a provision of “inability to rate” be utilized where employees are not in a duty status, under performance standards, etc for at least 90 days. Unless they receive a rating of record, they should not receive a performance based increase before the next rating cycle. They could however, be eligible for any rate range adjustment and local market supplement. We concur with paragraphs (f) and (g). 9901.516 Internal placement. This provision states that DoD may prescribe the establishment of in-service probationary periods. We disagree with this concept and believe that it is totally unnecessary. When we have several options from which to fill a position and work under the principal that we only select the best-qualified candidates, there should be no need for this process. We believe this sends the wrong message to our current workforce, all of whom have served a one-year probationary period already, by saying that they can be selected but may not have that job in one year. We need to concentrate our efforts on selecting the right employees not creating doubt/distrust in the workforce. Lastly, given the fact that a stated goal of NSPS is to simplify the process for managers to separate unproductive or troublesome employees, creation of an additional and artificial probationary period is superfluous and likely to difficult to support in any potential wrongful termination litigation that could ensue when it’s provisions are invoked. 9901.917(d)(1) Duty to bargain and consult. This provision states that management may not bargain over Component policies. We recommend that DoD implementing issuances broaden the definition of “Component policies” to include any “implementing issuances” which may be required at the installation level i.e. how pay pool dollars will be established, determination of competitive area for RIF, and other matters when the local Commander or Director has an option regarding the operation of NSPS. Additionally, it would certainly enhance our efficiency if the definition and reserved rights of "Component" could be expanded to include DA, MACOM and even MSC, where MSCs have an exclusive bargaining relationship with union(s), if possible. 9901.924(e) Official time. We interpret this provision to address situations where a representative may be provided excused absence to represent more than one bargaining unit at the installation where the representative in employed. We recommend that this be more clearly stated and that a statement be included prohibiting the providing of official time for a union representative at his/her employing installation to represent employees covered by a different local at a different organization under the direction of another Commander or Director. 9901.704 Subpart G-Adverse Action Coverage. Paragraph (b) includes actions excluded from adverse actions. Recommend that another one be added which has been a positive innovation in the ongoing ERDC demonstration project. This is the movement of an employee to a lower pay band resulting from a less than fully successful rating where the employees does not receive a General Schedule increase. The ERDC demonstration project manager must withhold one half or all of the General Schedule increase if the employee’s performance is less than fully successful. We consider an action to change the employee to the lower pay band to be one based on the employee’s action or inaction that led to the low performance rating. The language in the ERDC Federal Register, Vol. 63, No. 57/Wednesday, March 25, 1998, IX Required Waivers to Law and Regulations, B., Waivers to Title 5, Code of Federal Regulations, Part 432.104-105 read as follows “Performance based reduction in grade and removal actions (to the extent that “pay band” is substituted for “grade”) and reduction in band level as a result of non-receipt of General Schedule increases because of poor performance is not an adverse action.” We recommend the use of this language as exception number 17 and substitute Rate Range Adjustment and Local Market Supplement for General Schedule. Recruitment and retention in high cost of living areas is dependent on being able to pay locality pay in all career groups. Any variability in locality pay by career group, pay schedule, occupation and or pay band should not be implemented. Additionally, if the policy on pay retention applies to employees who are migrating from the GS to NSPS, and locality pay is subject to the variability discussed above, then limiting pay retention to only 2 years may have the adverse affect of reducing the pay of current high performers (those whom we are trying to retain) if their locality pay is reduced under NSPS. The last comment we would offer addresses the conversion process from NSPS positions to positions outside NSPS. There needs to be a clear process for determining the General Schedule grade equivalents and award equivalencies.