• Retained – House language allowing employees to organize and bargain collectively, subject to the provisions of this chapter. Senate version had no similar language. Impact: Negligible. It's just "feel good" language.

• The conference report lists chapter 71 as nonwaivable. House version had allowed waiver of 71. However, section (g) allows national level bargaining and, despite the nonwaivability of chapter 71, section (m) allows DoD to create an entirely different labor relations system. Impact: The nonwaivability of chapter 71 is a farce.

• Dropped – Senate language stating that national level bargaining only applied to issues impacting more than one bargaining unit. Impact: Secretary of Defense could elevate an issue affecting only one bargaining unit to the national level, thereby effectively eliminating local unions' rights.

• Added -- New section that sets forth the requirements for a new labor relations system. This provision states that the Secretary "may" establish such a system. This language tracks the framework used by DoD and unions to establish the NSPS (see subsection (f)).

• Employee representatives are allowed to have "meaningful discussions" about the development of the new labor relations system. With regard to union-recommended changes not accepted by DoD, there will be a 30-day meet and confer period, with the possibility of mediation services. Impact: Damaging. If DoD and unions do not agree to any parts of the proposal, the Secretary can implement any part after giving Congress 30 days notice.

• The new labor relations system shall provide for independent third party review, "including defining what decisions are reviewable by the third party, what third party would conduct the review, and the standard or standards for that review." Impact: This is not a statutory right to independent third party review. DoD can craft something phony, force the unions to accept it (because what recourse will unions have?), yet claim that it's "independent."

• The new system cannot expand the scope of bargaining under chapter 71. Impact: Damaging. Until now, if an issue weren't addressed in the statute, agencies and unions could bargain. Now that will not be

• The new system will be binding on all units within DoD and will supersede all previously negotiated agreements.

• The new system will apply for six years after the date of enactment at which time the provisions of chapter 71 will apply.

• Added – New language stating that "[t]he procedures under this subsection are the exclusive procedures for the participation of employee representatives in the planning, development, and implementation of the National Security Personnel System." Neither House nor Senate versions had this language. Impact: Damaging. Designed to prevent collective bargaining over new systems.

Pay and Classification System

• Allows DoD to completely change the pay and classification system for all civilian employees by allowing the Department to waive chapters 51 and 53 of title 5, United States Code. Deletes Senate details about what the new pay and classification system must contain, including the establishment of pay bands, a performance rating system, and upper and lower salary levels. Impact: Damaging. DoD civilian employees will be vulnerable to their supervisors' whims, rather than Congressional action, to determine whether and how much of a pay raise they will receive. And although DoD will argue that their pay-for-performance systems have been successful in demonstration projects, virtually all of them provided much larger funding for salaries than the regular pay system amounts.

• Weakens language in the Senate bill that for the first four years, the total amount allocated for employee salaries cannot be less than what would have been allocated under the General Schedule system. Also weakens Senate language that after the initial four years, DoD will establish a formula for the amount that will be allocated for salaries. Impact: Damaging. DoD officials will be able to argue that other budget priorities necessitate cutting the funding for civilian salaries, particularly during wartime.

• Includes weak House language requiring military-civilian pay parity only "to the maximum extent practicable." Impact: Damaging. DoD civilians will only be guaranteed an annual pay raise if Congress later passes one specifically for them.

• Premium Pay – Allows waiver of most of subchapter V of Chapter 55 of title 5, U.S. Code, which relates to overtime, weekend, holiday, and hazardous duty pay. Firefighter pay provision is not waived. Impact: Damaging. These provisions have been in the law for decades, and are designed to provide compensation for employees working under irregular, non-family-friendly schedules, as well as in dangerous situations.

• In general, the conference report retains the Senate version of the appellate process which allows DoD to set up an alternative appeals process. It retains the right of employees to appeal to the Merit Systems Protection Board as an appellate body and allows the employees the option of judicial review. Impact: Damaging. DoD civilians will have far fewer rights to appeal personnel actions to an independent body than other civilian employees have.

• Added – The conference report limits appeals to the MSPB to employees who are removed, suspended for more than 14 days, furloughed for 30 days or less, reduced in pay or pay band, not serving under a probationary period, and who would otherwise be eligible to appeal an action to the MSPB.

• Added – The right of employees to appeal to the MSPB is provisional for seven years after the date of enactment and shall become permanent unless Congress revises the provisions.

• Retained – House language allowing flexibility in recruiting, assigning, reassigning, detailing, transferring, promoting, and reducing the numbers of employees. The Senate version only allowed flexibility in recruiting. Impact: Damaging. Particularly with regard to retention order during reductions-in-force, DoD will be able to significantly reduce or even eliminate the weight of years of service. Currently, both performance as well as years of service are calculated to determine retention order.

• Added – Senate language requiring the Secretary to comply with veterans preference requirements.

133759 – November 7, 2003