MINAHAN AND SHAPIRO, P.C.
ATTORNEYS AT LAW
The DOD Bill: H.R. 1588, Title XI
Signed by the President, November 24, 2003.
Title XI of this law adds a new Chapter 99 to title 5 of the U.S. Code. It authorizes the Secretary of Defense to create, in consultation with the Director of OPM and with the affected unions, a new personnel system called "The National Security Personnel System."
The new system must not waive, modify or otherwise affect:
The public employment principles of merit and fitness set forth in 5 USC 2301, including the principles of hiring based on merit, fair treatment without regard to political affiliation or other non-merit considerations, equal pay for equal work and protection of employees against reprisal for whisleblowing.
Any provision of 5 USC 2302 (prohibited personnel practices)
Any provision of 5 USC 2302(b)(1) (all EEO laws)
The new system shall ensure that employees may organize and bargain collectively.
The new system shall include a performance management system that includes a process for ensuring feedback and dialogue between supervisors, managers and employees throughout the appraisal period, and setting timetables for review. This shall also include a "pay for performance" system.
To the maximum extent possible, the pay or civilians and of uniformed service members shall be adjusted at the same rate.
The Secretary may establish an appeals process that provides DOD employees with fair treatment in any appeals that they bring in decisions relating to their employment. This system shall ensure that employees are afforded the protections of due process.
Legal standards and precedents established by the MSPB and
the courts shall apply to DOD employees.
An employee who is subjected to an action normally appealable
to MSPB (suspension for more than 14 days, demotion or removal) shall have the right to appeal the final decision of the DOD personnel appeals system to the Headquarters office of
Provisions for Unions:
National level bargaining: The Secretary may decide to negotiate only with a national union in developing the new National Security Personnel System. Any such bargaining shall be binding on all subordinate levels of the labor organization.
The law declares the following chapters of title 5 to be non-waivable: 41, 45, 47, 55, 57, 59, 71, 72, 73 and 79. Chapter 71 is the chapter that contains all the laws on labor-management relations. Despite this, near the end of the bill, Congress says that the Secretary and the Director of OPM may establish a new labor relations system. How much of Chapter 71 DOD would choose to retain is unknown. The bill does say that "the labor relations system shall provide for independent third party review of decisions." This part of the bill (authorizing a new labor relations system) expires in 6 years, after which the provisions of 5 USC Chapter 71 shall be effective again.