April 14, 2005 Thursday

TYPE: COMMITTEE HEARING

LENGTH: 20474 words

COMMITTEE: SENATE ARMED SERVICES COMMITTEE

HEADLINE: U.S. SENATOR JOHN W. WARNER (R-VA) HOLDS HEARING ON NATIONAL SECURITY PERSONNEL SYSTEM

SPEAKER:
U.S. SENATOR JOHN W. WARNER (R-VA), CHAIRMAN

LOCATION: WASHINGTON, D.C.

WITNESSES:

GORDON ENGLAND, SECRETARY, U.S. NAVY
DAN BLAIR, ACTING DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT
DEREK STEWART, DIRECTOR, MILITARY AND DEFENSE DEPARTMENT, CIVILIAN PERSONNEL ISSUES, GOVERNMENT ACCOUNTABILITY OFFICE
JOHN GAGE, PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
HANNAH SISTARE, DIRECTOR, HUMAN RESOURCES MANAGEMENT CONSORTIUM, EXECUTIVE DIRECTOR, NATIONAL COMMISSION ON THE PUBLIC SERVICE, IMPLEMENTATION INITIATIVE, NATIONAL ACADEMY OF PUBLIC ADMINISTRATION

CLINTON: Thank you, Mr. Chairman, and thank you, gentlemen.

Of course, part of the dilemma and confusion that we are confronting here is that the devil is in the details and there are many unanswered questions and it's very difficult for us to reach conclusions as to whether or not the proposed regulation complies with the law as intended and written.

And I think the cautionary statements and questions by particularly the chairman and Ranking Member Levin and Senator Collins, since they were intimately involved in this process, are a big, yellow caution light, because it seems clear that there's some more questioning and answers to be obtained.

You just said that the new pay system will be budget neutral. Now that raises a question for me, because most of the demonstration projects that I'm familiar with, when it comes to pay for performance, have added additional money for salaries.

So in effect, with a budget neutral system and an attempt to move toward pay for performance, there will definitely be increasing pay disparities.

So it's understandable that many of the key questions that employees are wondering about are not answered yet in this draft regulation. We don't have specific career groups and pay bands established.

We don't have maximum and minimum pay levels. We don't have procedures for assigning pay to individual employees or the rules for overtime, compensatory time or other premium pay.

It is a very troubling change when there is so little guidance being given and when there are these serious questions being raised about whether the regulation complies with the underlying law.

And I think that what the Congress attempted to do, as I understand the NSPS, was to give more authority within parameters to DOD. And what we're concerned about is that those parameters which we thought were established in the law may not be determining what this proposal really is.

And that is why, I think, you're getting a lot of these inquiries.

I'm particularly concerned because all of these issues about pay, which goes to the heart of employees' concerns, are being left to, quote, "implementing issuances" to be provided at some unspecified time in the future.

I don't see how you can expect the DOD civilian employee workforce to have confidence in this new system when there is so much that is left unanswered and it's a great big "Trust me" theory.

And I don't think that's in the best interests of either the management at DOD, the employees at DOD or, more importantly, the national security mission at DOD. We do not need to be breeding insecurity and confusion amongst the civilian employee workforce.

So I would hope that, both Secretary England and Mr. Blair, you would take these questions very seriously, because there's a great deal of concern on this panel.

I want to ask a more general question, because I am by no means an expert in all of the personnel questions -- I'll leave that to my friend, Senator Akaka and others.

But, Mr. Blair, in your testimony, you state that current law in labor relations is inadequate when it comes to national security matters, because and then I quote, "DOD needs the ability to move quickly on matters before they become an emergency," and current law simply doesn't allow you to do so."

I think that we understand the need for quick and flexible action. And I think that the real underlying reason behind the law was to give you more flexibility for being able to move quickly if necessary.

But I think that a rational response to these problems might be to give you the authority -- which is I thought what we were doing in the law -- so that when national security is at stake, you can move, but then you bargain over the impact and implementation after the fact.

However, that is not what your draft regulation does. Instead, it exempts those issues, procedures and arrangements from collective bargaining altogether, regardless of whether the situation is urgent or whether there is a national security need to proceed with action and without any bargaining, even after the fact.

So let me ask -- if the reason for altering collective bargaining requirements is DOD's need to act quickly on urgent national security matters without bargaining first, why didn't you tailor your regulation to this narrow, specific need instead of carving out these large, categorical exemptions to collective bargaining requirements?

BLAIR: Well, I think the intent was, Senator Clinton, to make sure that the department could move quickly. And in doing so, we thought that we developed a good framework in carving out these exceptions.

Keep in mind, however, that these exceptions are in a proposed form and will be going through a meet-and-confer process in the statutory period.

Congress set up, when we did these proposed regulations, to allow 30-day notice and comment, a minimum 30-day meet-and-confer period, then with a 30-day statutory period for congressional review.

BLAIR: We are about to embark on the second of that stage. And so comments such as yours will help us further frame the debate and further raise discussions as we move into this period.

These regulations are not final. They are subject to change. And comments like yours will help us as we further refine and draft these.

CLINTON: Well, I'm very glad to hear that. And I know that other members of this committee are as well.

And let me just perhaps put this into a broader context -- and I'll just speak on my own behalf. But I am increasingly concerned about the erosion of checks and balances in our government.

I think that the genius of our founders is they created these checks and balances, and we have done very well as a nation for more than 200 years so that if people got too powerful, there was an independent judiciary, there was collective bargaining, there were ways of reining in unchecked power.

And I just offer a cautionary note, that I understand the urgency. I understand the great sense of mission at DOD. But human nature has not changed. And as Lord Acton said, "Power corrupts, and absolute power corrupts absolutely."

And you're not just making changes for the short term, but ones that will last for some time.

I think one of the real benefits of our system is there are all these different voices. And sometimes it's annoying and sometimes it slows you down and sometimes you wish you didn't have to deal with people who are saying, "Wait a minute, I'm a welder at this military facility and it's not safe here anymore and we need to do something about it."

And so I would hope that, not only on the specifics, but on the larger issue, just be sure that we are not throwing the baby out with the bath here, that we are not changing a system that has served this country very, very well.

And yes, if you're a manager, you always want free action. And if you're an employee, you always want some kind of bargaining power.

So creating that balance is what we should be doing. And just based on a review of these regulations, I'm afraid we're tilting the balance too far in the other direction.

ENGLAND: Senator, first of all, what you just said, I will tell you, I hardly agree with. I just had this conversation with Senator Levin a few moments ago.

If you want something very clean and easy -- dictatorships, that's their characteristic. Democracies are obviously messy and lots of voices and that's what's very important in our system. And God bless America. That is what makes America.

And so I recognize that.

I will tell you, we are trying to strike a balance here. We have gotten 10,000 inputs from our employees. We've been with every organization, every service organization, veterans organization. We have solicited everyone we know to provide input into the system.

Our objective is to make this fair, transparent and as broad- based as we can to make sure we end up with an equitable system.

It has to be equitable. This is our most critical resource in the Department of Defense. I can assure you, our whole objective is to make sure that this is more beneficial for our employees. We are determined to make this a win for our employees and a win for national security.

I'm convinced we can do that. And we're all in this discussion to get there.

But we're not at the end of this yet. We are at about a third of the way through in terms of the detail of the system.

So I understand without the detail, that's where the devil's in the detail. We're working our way through this. There is opportunity for more dialogue -- a lot of opportunity. We're just entering that real dialogue period in terms of legislated dialogue with our unions.

But there's opportunity again to interface with the Congress on this subject. So we do want a system that works appropriately.

That given, we are going to change the system that we have today, because it is not responsive to what we need to do. So we need to make sure that we do change those things to give us the flexibilities that we need, but we do not in any way eliminate any of the protections and fairness that's in the current system.

So I can just give you my personal commitment: We will continue to work this. This is the way we've been working it for the last year. We will continue that way. And we will make it work out for all the employees.

That is in the interests of DOD, to make sure this works out well for our employees.