American Federation of Government Employees, AFL-CIO
To: AFGE Activists
From: Beth Moten
Legislative and Political Director
Subj: Urgent: Contact your Senators now about NSPS
Date: May 18, 2007
Today the Court of Appeals issued its decision in the AFGE lawsuit against the Department of Defense on the NSPS regulations. Unfortunately, the Court has ruled in favor of the Department, and therefore DoD can move forward with implementing the NSPS regulations. The Court of Appeals consisted of three judges: Two of the judges ruled in favor of DoD, and one ruled in our favor.
Under this decision, DOD would be free to implement the regulations eliminating collective bargaining and creating a kangaroo court for handling adverse action appeals. We are exploring avenues of appeal, but this split decision shows even more clearly that the law which established NSPS needs to be reformed by the Congress. The court’s ruling was always possible given the convoluted law authorizing NSPS. We always knew that a legislative fix was needed to change a bad law. That’s why we need AFGE activists to call their Senators immediately and urge them to support the legislative fix that was passed yesterday by the House of Representatives. Calls should not be made on duty time, on government property or using government equipment. Call the Capitol Switchboard at 202-224-3121 and ask to be connected to your Senator’s office.
Yesterday, the House of Representatives passed its version of the 2008 defense authorization bill. A bipartisan committee agreement created language in the Readiness section of the bill which would:
restore the statutory authority establishing collective bargaining rights for DoD civilian employees.
restore the statutory authority establishing an independent appeal for employees facing severe disciplinary actions (“adverse actions”).
permit the department to move forward with its new pay system but with some limitations on application to rank-and-file employees.
We are seeking similar language in the Senate version of the defense authorization bill when the bill is marked up next Tuesday. It is imperative that all AFGE activists contact their Senators, especially those on the Armed Services Committee, to include the House language in its version of the defense authorization bill.
If you are asked about the Court of Appeals decision, tell them that the decision was split 2-1, that it was not unexpected, and that we always knew that we would need legislative relief. If they ask whether we are going to appeal, say that is likely, but we still want the law to be changed.
On February 14, 2005, the Department of Defense (DoD) published draft regulations to create the National Security Personnel System (NSPS). These sweeping regulations replace current provisions of Title 5, U.S. Code, affecting pay, classification, personnel management, employee appeal rights, and collective bargaining for 700,000 civilian employees in the Department. DoD's authority to create an alternative personnel system -- within certain parameters -- was granted under the FY 2004 National Defense Authorization Act (Public Law 108-136).
The law required the NSPS to be established jointly with unions through a "meet and confer" process. It also required union participation in the planning and development of the system. In order to ensure that the meet and confer process did not bog down, the 36 unions representing 700,000 employees in DoD formed a joint United Department of Defense Workers Coalition (UDWC). The Coalition submitted comments on the Department's proposals regarding collective bargaining, employee appeals of adverse actions, and the establishment of a new pay system. In addition, the Coalition spent months in "meet and confer" offering DoD options and alternatives which would have changed and enhanced current procedures without sacrificing important employee rights that Congress intended to be safeguarded by the law. Unfortunately, despite months of meetings, DoD failed to take the process seriously and, for all practical purposes, ignored the proposals of the employees representatives. DoD made clear they simply want unlimited authority with no effective outside review.
On November 7, 2005, the Department filed its final NSPS regulations. Ten federal employee unions jointly filed suit against the regulations, and on February 27, 2006, Judge Emmett G. Sullivan issued his decision, ruling illegal several key labor-management components of the new personnel system including collective bargaining and independent third-party review of labor-management disputes.
Judge Sullivan found that NSPS did in fact "eviscerate" collective bargaining rights for DoD employees. Contrary to DoD's assurances of fair treatment, Judge Sullivan found "each of the regulations is the antithesis of fair treatment."
His decision enjoined the agency from implementation.
Background on Collective Bargaining Rights
Public Law 108-136 called for a new labor relations system ostensibly for DoD to engage in national level bargaining with unions, rather than negotiate the same issues at each local installation. It is interesting to note that DoD claimed national level bargaining was needed, yet since the passage of this law in 2003, at no time has DoD ever approached any union to negotiate on any issue at the national level. In addition, the law required the retention of an independent third party to resolve labor-management issues.
During the meet and confer process, the unions offered to engage in national-level, multi-unit, and multi-union bargaining. They offered to speed up the timeframes for bargaining and to engage in mediation-arbitration processes by mutually selected independent arbitrators in order to quickly resolve any bargaining disputes. At this time I would like to place in the record a document entitled: Contrasting Plans for the Department of Defense: Labor's Proposals for Positive Change Versus Management's Unlawful Return to the 19th Century.
Despite these proposals and the limitations of the statute creating NSPS, DoD's NSPS regulations go far beyond the concept of national level bargaining, and instead virtually eliminate collective bargaining over matters that go to the very heart of employee issues, including overtime, shift rotation, flexitime and compressed work schedules, safety and health programs, and deployment away from the regular worksite. These and many other issues have been negotiated successfully for years by employee representatives with Department management officials. The result of that bargaining has been the creation of smooth systems which both ensure that the work gets done and that employees are able to enjoy safe workplaces and properly balance their work lives with their responsibilities to their families. In addition, the regulations eliminate the statutory right to collective bargaining by providing the Secretary unlimited power to remove ANY subject from bargaining by unilateral "issuance."
Further, the regulations replace the current independent, statutorily-created Federal Labor Relations Authority and the Federal Service Impasses Panel with an internal board whose members are selected solely by the Secretary. The board's composition ensures that it will lack impartiality and thus undermine the credibility of the new collective bargaining system among employees. This internal board is not independent, as required by the statute.
The House language would restore collective bargaining rights as provided under chapter 71, Title 5.
Background on Employee Appeal Rights
Under Title 5, federal employees have the right to appeal an agency's adverse actions to the independent MSPB. The NSPS statute mandated that DoD protect due process rights and ensure that any new adverse action procedures be "fair" to employees. The statute authorized DoD to create a "streamlined" procedure for employee appeals.
Again, during the meet and confer process, the union coalition took seriously this opportunity. They offered several proposals including constructive changes such as developing a single standard of proof, a speedier and more efficient process, having immediate judicial review of arbitration decisions, and giving full authority to Administrative Judges, arbitrators, and the Merit Systems Protection Board to determine the adequacy of proof and to mitigate penalties.
Instead, the Department's NSPS regulations do not streamline the process, but actually add steps to the process. Under Title 5, arbitrator decisions in discipline cases are subject to immediate judicial review. However, the NSPS regulations subject arbitrator decisions, as well as MSPB Administrative Judge (AJ) decisions (in cases where employees do not elect arbitration), to two layers of administrative review. The first review is by DoD itself and allows the Department the unilateral right to overturn the decision of the independent AJ or arbitrator before the case can even be appealed to the full MSPB. Instead, decisions will become essentially advisory subject to DoD review and then may be reviewed by the MSPB, thus reducing the rule and power of arbitrators and Administrative Judges. This is entirely insupportable and contrary to Congressional intent. Since DoD wins close to 90% of its current MSPB cases, there is simply no justification for eliminating a fair adjudicative process for employee appeals. This change will dramatically increase the MSPB workload, delay results, and cause inefficiency in the system.
Further, the NSPS regulations prohibit an AJ or arbitrator from mitigating DoD's penalty unless it is "totally unwarranted." This new standard, never before used, is clearly designed to prevent DoD from ever having a disciplinary action mitigated, no matter the circumstances. This is hardly a system that could be considered "fair to employees."
The House language would restore to DoD employees appeal rights provided under Title 5.
While we have many concerns about the department's new pay system, the House language would permit the Department of Defense to continue moving forward with implementation. To date, the system has begun to be implemented for some high level DoD employees but it has not yet been applied to rank-and-file employees in collective bargaining units. The House bill would allow DoD to implement pay for performance in these units, but first the department must negotiate with the exclusive representatives of the rank-and-file employees. The negotiations would be conducted under the current Title 5, chapter 47 authority which establishes demonstration projects. The result of this language would be that DoD can continue to apply pay-for-performance to higher level employees. Rank-and-file employees could participate, after appropriate negotiations, with their representatives. This will give the department the chance to work out the kinks in the new pay system before applying it throughout the department.
Important: This information should not be downloaded using government equipment, read during duty time or sent to others using government equipment, because it suggests action to be taken in support of or against legislation. Contact your lawmaker's office from your home phone, personal cell phone, or home email, and not on government property or on duty time.