MARCH 2006 UPDATE American Federation of Government Employees Field Services Department

March 2006 1

MARCH 2006 UPDATE

American Federation of Government Employees

Field Services Department

March 2006 2

WHAT IS NSPS?

NSPS is a brand new system for: 1. Job Classification2. Pay3. Performance Management4. Staffing and Employment5. Workforce Shaping (aka Reductions in Force)6. Adverse Actions7. Appeals 8. Labor Relations

March 2006 3

When Will NSPS Happen? Early 2006• DoD to “pilot” training for employees, managers, supervisors, and HR practitioners*

Feb. 2006• 2/27/06 – Judge Sullivan rules in favor of AFGE – declares that NSPS illegally

eviscerates Collective Bargaining and fails to ensure fairness to employees. Judge enjoins DoD from implementing the Adverse Actions, Appeals and Labor Relations sections.

• DoD says it intends to go forward with the rest of NSPS.

March-Dec. 2006• Additional implementing issuances at the Department and Component levels• Additional “continuing collaboration” meetings

May 2006 • DoD to implement “pilot” Spiral 1.1, including 8-10,000 nonbargaining unit employees*• Phase-in of new performance standards, classification for Spiral 1.1 pilot group*• Later, phase-in of pay banding, hiring rules & “workforce shaping” (aka RIF) rules*

* NOTE: all dates are tentative and subject to change

March 2006 4

When Will NSPS Happen? CONTINUED

October 2006• DoD to implement Spiral 1.2; ~47,000 employees, BU, GS, Continental U.S.?*• Performance cycle ends for Spiral 1.1?*

2007• Regular General Pay Increase for all eligible civilian employees • First NSPS performance-based payout for Spiral 1.1?• Performance cycle ends for Spiral 1.2?• Implement Spiral 1.3, ~160,000 employees?

2008• First NSPS performance-based payout for Spiral 1.2?• Performance cycle ends for Spiral 1.3?• First performance-based payout for Spiral 1.3?

Nov. 2009• NSPS Labor relations authority expires; Chapter 71 reinstated

Nov. 2010• MSPB appeal rights may expire, absent Congressional action

*NOTE: all dates are tentative and subject to change

March 2006 5

American Federation of Government Employees

Field Services Department

JUDGE SULLIVAN RULES FOR

AFGE!!!!!

March 2006 6

AFGE v Rumsfeld In 2005, AFGE and other unions sued DoD/OPM for

violating 2 laws in developing its NSPS regulations: – Federal Labor Management Relations Statute, 5 USC

Chapter 71 & – National Defense Authorization Act of 2003, 5 USC Chapter

9902 et seq. (“NDAA”)

• NDAA 9902(a) permits DoD/OPM to create a “modern, flexible” personnel system as a replacement for the General Schedule;

• NDAA 9902(h) authorizes DoD to modify the Adverse action/Appeals process, as long as the process is fair and affords employees due process

March 2006 7

AFGE v RumsfeldCONTINUED

NDAA § 9902(m) allows DoD/OPM to “establish and from time to time adjust a labor relations system for the Department of Defense to address the unique role that the Department’s civilian workforce plays in supporting the Department’s national security mission;”

BUT NDAA § 9902(b) requires that any new system “ensure that employees may organize, bargain collectively. . .,and participate through labor organizations of their own choosing in decisions which affect them;” AND *not waive Chapter 71, “except as otherwise specified;”

March 2006 8


NDAA § 9902(m) “specifies” only 2 changes from Chapter 71:

1. national bargaining;

2. a new “independent third party” to resolve labor-management disputes, AND

3. Requires that any new system be “collaborative,” issue-based,” and developed in conjunction with employee representatives.

March 2006 9


So what did DoD do?

March 2006 10


AFGE asserted in our lawsuit that DoD broke the law in five different ways:

March 2006 11


ILLEGAL DEVELOPMENT of THE SYSTEM:– DoD failed to develop the LR system in conjunction with the

unions.

LABOR RELATIONS:

2. DoD tried to illegally waive all of Chapter 71, including removing I & I bargaining rights and cancelling existing contract provisions.

3. DoD tried to illegally replace the independent FLRA and FSIP with a new DoD-appointed internal Board to hear most ULP’s, negotiability and bargaining disputes, not an “independent third party” as required by law.

March 2006 12


ADVERSE ACTIONS AND APPEALS:

4. DoD illegally authorized so-called “Mandatory Removal Offenses” or MRO’s, tried to prevent arbitrators from hearing such cases at all, and tried to stop MSPB AJ’s from mitigating or reversing such removals, even if the employee is innocent or the removal was unfair.

5. DoD tried to illegally change the MSPB appeals process and replace it with an unfair, biased DoD right to second-guess and overturn AJ decisions, which was heavily weighted in favor of DoD and against employees and would make cases take longer and cost more.

March 2006 13

AFGE v Rumsfeld, Part 1 (Development)

Law required: • “meaningful participation” in

“development of system”• Within 60 days of enactment

(11/24/03)• Followed by 30 days of meet

and confer, & 30 days notice to Congress

Instead, DoD wasted a full year in “pre-decisional meetings” with unions, then ignored 90% of union input and “went dark.”

• DoD/OPM assigned secret working groups to develop regulations, which it then published in Federal Register for 30 days of notice and comment, followed by 30 days of “meet & confer,” then publication of final rule.

• Unions were shut out at critical times.

AFGE claimed that DoD illegally failed to develop the LR system in conjunction with the unions.

March 2006 14


AFGE claimed that DoD illegally failed to develop the LR system in conjunction with the unions.

JUDGE: DoD did satisfy its statutory obligation to “meet and confer” with unions in developing the system, since it did hold 19 meetings and did not act in bad faith.

March 2006 15


• JUDGE: “In sum, while defendants’ may not have met Congress’ requirements with enthusiasm, the Court finds no evidence that defendants acted in bad faith and, therefore, is satisfied that . . . they collaborate[d] with plaintiffs. The Court suspects, however, that more substantive meetings with plaintiffs could have helped defendants avoid the shortcomings of these regulations in providing for collective bargaining. . . “

Decision, p. 38

March 2006 16

AFGE v Rumsfeld, Part 2 (Labor Relations)

Law required: • Chapter 71 is not

waived• NSPS must preserve

collective bargaining• Employees must be

able to participate thru labor unions in decisions which affect them

DoD regulations:waive, “modify” and “replace” Chapter 71.

Collective bargaining is severely limited

Other union rights are narrowed

Exactly what Congress said they could not do!

AFGE claimed that DoD’s regulations illegally waive all of Chapter 71, including removing bargaining rights and cancelling existing contract provisions.

March 2006 17

AFGE v Rumsfeld, Part 2; Plaintiffs’ Comparison of the Statutory Language and the Challenged Regulation

(Labor-Management Relations)NDAA Statutory Language

5 U.S.C. § 9902(b)(4):Any system established under subsection (a) shall-- … ensure employees may organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions that may affect them, subject to the provisions of this chapter and any exclusion from coverage or limitation on negotiability established pursuant to law.

5 U.S.C. § 9902(b)(3)(D)):Any system established under subsection (a) shall--… not waive, modify, or otherwise affect-- … any other provision of this part (as described in subsection (d));….

5 U.S.C. § 9902(d)(2): The other provisions of this part referred to in subsection b(3)(D) are (to the extent not otherwise specified in this title)-… chapters … 71.

Challenged Regulations

5 C.F.R. § 9901.104(f):

The authority for this part is 5 U.S.C. 9902. The provisions in the following chapters of title 5, U.S. Code, and any related regulations, may be waived or modified in exercising the authority in 5 U.S.C. 9902: …

(f) Chapter 71, dealing with labor organization (as authorized by 9902(m);

March 2006 18


(Labor-Management Relations)

NDAA Statutory Language• 5 U.S.C. § 9902(b)(4):

Any system established under subsection (a) shall-- … ensure employees may organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions that may affect them, subject to the provisions of this chapter and any exclusion from coverage or limitation on negotiability established pursuant to law.

● 5 U.S.C. § 9902(b)(3)(D); (d) (2):

Any system established under subsection (a) shall--… not waive, modify, or otherwise affect-- …

chapter … 71.

Challenged Regulations (ctd).

● 5 C.F.R. § 9901.902:

When a specified category of employees is covered by the labor-management relations system established under this subpart, the provisions of 5 U.S.C. 7101 through 7135 are modified and replaced by the provisions in this subpart with respect to that category, except as otherwise specified in this subpart. Implementing issuances may be prescribed to carry out the provisions of this subpart.

March 2006 19


Current rules5 USC Chapter 71 applies

– Union contracts are binding and enforceable

– Right to negotiate working conditions & I & I negotiations over management rights

– Right to have a voice at work– Freedom from retaliation for union

activity or whistleblowing– Impartial, independent arbitrator,

FLRA (Federal Labor Relations Board) or FSIP (Federal Service Impasse Panel) decides all disputes

NSPS Rules5 USC Chapter 71 is “waived”

-Existing contractual obligations are invalidated on effective date if they conflict with NSPS regs

-No right to negotiate over ”I & I” of “operational” decisions; future scope of bargaining narrows as contracts expire

-Voice at work sharply limited-Fewer employee protections-Disputes decided by internal NSLRB

(National Security Labor Relations Board), a panel hand-picked by the Secretary of Defense, with appeal to FLRA only in certain cases

March 2006 20


JUDGE: DoD did have the right to make certain changes and “modifications” to Chapter 71, in addition to those two which are specified in the statute. BUT

“the new system must ensure that the principles of collective bargaining are not totally eviscerated.” p. 48

!

AFGE claimed that DoD’s regulations illegally waive all of Chapter 71, including removing bargaining rights and cancelling existing contract provisions.

March 2006 21


AFGE argued that DoD’s regulations totally eliminated the right to meaningful collective bargaining, by providing that

1) Regulations and “Implementing Issuances” supersede all existing collective bargaining Agreements;

2) all matters in regulations and implementing issuances are nonnegotiable;

3) Agency need not show “compelling need” for any agency regulation, no matter how many employees affected.

March 2006 22


Impact on existing Agreements:• “Any provision of a collective bargaining

agreement that is inconsistent with [the regs] and/or implementing issuances is unenforceable on the effective date . . . ” 9901.905(a)

• DoD provided that Unions may appeal the Department’s determination that a provision is unenforceable only to the DoD-appointed National Security Labor Relations Board.

March 2006 23

NSPS limits Scope of Future Bargaining

Also, future “Issuances” would prevent any future bargaining over any matter covered therein:“Management may not bargain over any maters that are inconsistent with [these] regulations. . . issuances and implementing issuances.”

9901.917(d)(1)

March 2006 24

NSPS erases Ch. 71 “Compelling need” Test

Under Chapter 71, agency rules or regulations do not supersede CBA’s or limit bargaining unless

1. a union represents less than a majority of affected employees and

2. the agency proves to the FLRA that a “compelling need” exists for the rule or regulation.

March 2006 25

AFGE v. Rumsfeld Part 2 Labor Relations

AFGE argued that these changes effectively eliminate the legal right to bargain, by letting only one side decide what parts of CBA’s will remain binding and by allowing one side (the Secretary) to decide that subjects DoD will bargain over in the future. These changes violate both Chapter 71 and the NDAA.

As Judge Collyer found in the DHS case, such one-sided bargaining is not bargaining at all.

March 2006 26


Judge Sullivan agreed: • “both [the DHS and DOD] statutes recognize a

right to collective bargaining which need not conform to chapter 71 but still must retain its core components. In both statutes, collective bargaining is an independent statutory requirement. Congress was clear that the Agencies cannot “sacrifice collective bargaining in the interests of flexibility.”

(quoting from Chertoff decision) p. 49.

March 2006 27


Judge Sullivan agreed:

“A contract that is not mutually binding is not a contract. Negotiations that lead to a contract that is not mutually binding are not true negotiations. A system of ‘collective bargaining’ that permits the unilateral repudiation of agreements by one party is not collective bargaining at all.” Chertoff I, 385 F. Supp. 2d at 28.

Defendants in this case have eviscerated collective bargaining rights with regulations nearly identical to those invalidated by the Chertoff I court, despite virtually identical requirements by Congress that each human resources management system ensure collective bargaining. The regulations are contrary to § 9902(b)(4) because they establish a labor relations system that fails to provide for collective bargaining. p. 59.

March 2006 28


Judge Sullivan agreed: Contrary to the plain language of [the law], the new rule fails to ensure even minimal collective bargaining rights. “The sine qua non of good-faith collective bargaining is an enforceable contract once the parties reach an agreement.” See Chertoff. As in [that case], the regulations concerning management rights fail in this case because “any collective bargaining negotiations pursuant to its terms are illusory: the Secretary retains numerous avenues by which s/he can unilaterally declare contract terms null and void, without prior notice to the Unions or employees and without bargaining or recourse.” (quoting from Chertoff decision) p. 49.

March 2006 29


AFGE also argued that DoD’s regs illegally expanded management rights:

9901.910 (a): “... nothing in this subpart may affect the authority of any management official or supervisor of the department –

(1) To determine the mission, budget, organization, number of employees, and internal security practices of the Department.

March 2006 30

Management RightsCONTINUED

(a)(2) To hire, assign, and direct employees in the Department; to assign work, make determinations with respect to contracting out, and to determine the personnel by which operations may be conducted; to determine numbers, types, pay schedules, pay bands and/or grades of employees or positions assigned to any organizational subdivision, work project, tour of duty, and the technology, methods, and means of performing work; to assign employees to meet any operational demand; and to take whatever other actions may be necessary to carry out the Department’s mission; and

March 2006 31


• (3) To lay off and retain employees, or to suspend; remove; reduce in pay, pay band, or grade; or to take other disciplinary action against such employees, or with respect to filling positions, to make selections for appointments from properly ranked and certified candidates for promotion or from any other appropriate source.

March 2006 32


9901.910(b):

Management is prohibited from bargaining over exercise of any authority under paragraph (a) of this section or the procedures that it will observe in exercising the authorities set forth in paragraphs (a)(1)and(2) of this section.

March 2006 33

AFGE v Rumsfeld, Part 2Management Rights, ctd.

AFGE argued that DOD illegally expanded management rights and reduced the scope of bargaining beyond all recognition.

Under Chapter 71, mgt has certain rights but must negotiate “procedures” for exercising those rights as well as “appropriate arrangements” for employees adversely affected by the exercise of those rights. 5 USC 7106(b)(2),(b)(3). Bargaining also must be completed before any change.

March 2006 34

AFGE v Rumsfeld, Part 2Management Rights, ctd

DoD changes these rights in 7 different ways. Its new regulation

1. expands management rights to include unlimited rights to assign employees to meet any operational demand and “to take whatever other actions may be necessary to carry out the Department’s mission,” § 9901.910(a)(2);

2. eliminates the requirement that management rights be exercised in accordance with applicable laws, id.;

3. allows management in all instances to act immediately, before negotiations begin, regardless of any actual emergency or need for speed, § 9901.910(i);

March 2006 35


4. expressly bans negotiation of appropriate arrangements and procedures except for hiring, layoff, or discipline, unless the Secretary elects to bargain, §§ 9901.910(b) and (c);

5. bans negotiation of procedures even for hiring, layoff, or discipline where the management action “may be necessary to carry out the Department’s mission,” unless the Secretary elects to bargain,” §§ 9901.910(g) and (a)(2) (emphasis added);

6. bans negotiation of appropriate arrangements for those adversely affected by “routine assignment to specific duties, shifts, or work on a regular or overtime basis unless the Secretary elects to bargain,” § 9901.910(f)(2); and

7. grants the Secretary “sole, exclusive, and unreviewable discretion” to determine whether any negotiated arrangement or procedure will be binding, § 9901.910(h).

March 2006 36


In most cases, the right to bargain over the exercise of management rights and/or elective subjects is replaced by “NSPS consultation;” where appropriate arrangement bargaining is still permitted, it is limited to “matters such as personal hardships and safety measures,” is not binding or precedential, and may occur after management acts. 9901.910(f)(1)(i), (g)(h)(i)

AFGE argued that none of these changes is permitted by law, and all of them violate Chapter 71.

March 2006 37



1. New mgt right to “take whatever actions may be necessary to carry out the Dept’s mission” . . .is “no mere modification but, instead, the assertion of full authority to follow or ignore the terms of collective bargaining agreements almost at will.” Id. p. 50, quoting Chertoff..

March 2006 38


Judge Sullivan:

2. New mgt right to “take any matter off the bargaining table with the issuance of department-wide directives . . .permit[s] DoD to continuously and completely eliminate collective bargaining.” pp. 50, 53

March 2006 39


Judge Sullivan:

3. Elimination of bargaining over procedures and appropriate arrangements on most matters ”fails to ensure collective bargaining.” p. 54New mgt right to “take any matter off the bargaining table with the issuance of department-wide directives . . .permit[s] DoD to continuously and completely eliminate collective bargaining.” pp. 50, 53

March 2006 40

AFGE v Rumsfeld, Part 2 Labor Relations, CTD

AFGE argued that DoD made other illegal and unauthorized changes to Chapter 71:

– It expanded the definition of Supervisor. 9901.903– It limited grievances over violations of laws and rules. Id.– It restricted union representatives’ right to attend formal

meetings. 9901.914(a)(2).– It restricted union’s right to information. 9901.914(c)(4).– It restricted speech and conduct of union representatives.

9901.914(a)(4).– It limited unfair labor practice charges, by permitting DoD to

violate any CBA by issuing an “implementing issuance.” 9901.916(a)(7).

– It limited the right of Non-Appropriated Fund Instrumentalities (“NAFI’S”) to bargain over pay. 9901.305.

March 2006 41



Limits on conduct of union reps. “undercuts the very process with which collective bargaining is conducted, and conflicts with Congress’ requirement that the human resources management system “ensure that employees may . . . bargain collectively. . .” p. 56.

March 2006 42



Limits on NAF bargaining over wages “could potentially nullify the collective bargaining rights of NAFI’s and cannot be upheld. p. 59

Judge Sullivan did not rule on whether the other changes were legal, but enjoined the entire Labor Relations section.

March 2006 43

AFGE v Rumsfeld, Part 3NS Labor Relations Board

DoD tried to illegally replace the independent FLRA and FSIP with a new DoD-appointed internal Board, not an “independent third party” as required by law; this internal DoD Board would have been the only decisionmaker on most ULP’s, negotiability, bargaining disputes and impasses.

– AFGE argued that because the board is part of DoD, it is not a “third party.”

– AFGE argued that because the Secretary appoints the board, it is not “independent.”

March 2006 44


(Labor-Management Review Board )

Statutory Language (NDAA):

5 U.S.C. §9902(m)(6):

The labor relations system developed or adjusted under this subsection shall provide for independent third party review of decisions, 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.

Challenged Regulations:

5 C.F.R. §9901.907(b)(1):• The National Security Labor

Relations Board is composed of at least three members who are appointed by the Secretary for terms of 3 years, …. The Secretary, in his sole and exclusive discretion, may appoint additional members to the Board; in so doing, he or she will make such appointments to ensure that the Board consists of an odd number of members.

5 C.F.R. §9901.907(c):• The Secretary, at his or her sole

and exclusive discretion, will appoint one member to serve as Chair of the NSLRB.

CONTINUED ON NEXT SLIDE

March 2006 45

AFGE v Rumsfeld, Part 3NS Labor Relations Board


The NSLRB is – not jointly selected, – not a neutral outsider, and – is unfair because it both investigates and

decides disputes; – it is not an “independent third party.”

March 2006 46

AFGE v Rumsfeld, Part 4 Appeals

– AFGE also argued that DoD illegally tried to change the adverse action appeals process and standards, interfered with arbitrator’s and MSPB independent jurisdiction, and gave itself the power to overturn, remand or replace AJ decisions anytime it so chooses.

– These changes are unfair to employees and violate their rights to due process, because they tilt the playing field in DoD’s favor.

– Cases will take longer, cost more, and are harder for employees to win.

March 2006 47

AFGE v Rumsfeld, Part 4 Appeals

Current Title 5 rulesChapters 43, 75, 77– Employees subjected to

adverse actions may appeal to unbiased 3rd party

– 2 different standards of proof for performance or misconduct cases

– 3rd party may be arbitrator or MSPB (Merit Systems Protection Board)

– fair hearing, followed by appeal to Board or court

NSPS Rules-Employees may still appeal to MSPB

AJ or arbitrator BUT decisionmakers must defer to DoD, apply maximum justifiable penalties in all cases, cannot reverse MRO’s

-if employee wins, DoD can “review” and reverse AJ or arbitrator decision; may overturn credibility decisions and ignore evidence.

- If DoD wins, employee must appeal DoD decision to the full MSPB

- Mitigation of penalty is severely limited at lower levels; review of facts is severely limited at higher levels

March 2006 48

AFGE v. Rumsfeld, Part 4Appeals-DOD level 2 Review

AFGE argued that DoD tried to make the Appeals process more cumbersome and less fair.

– It added a second layer of appeals, whereby DoD can “review” decisions of arbitrators or AJ’s, and issue its own “final decision.” 9901.807(g)(2)(ii)(A), (B); .922(f)(2), 923(a).

– The innocent employee must appeal again to the full MSPB to overturn DoD’s “decision on review.” 9901.807(f)(2)(ii).

March 2006 49


– DoD also tried to substitute itself for the Federal Circuit Court of Appeals, allowing DoD to review and overturn arbitrator decisions, which under 5 USC 7121(f) are appealable --by employees only—to the Federal Circuit Court of Appeals.

– Under NSPS rules, if the Arbitrator rules in favor of the employee, DoD would get to toss out the Arbitrator’s ruling. The poor employee would have to file a second appeal, this time to the MSPB, and then and only then could she finally get her day in court. 9901.807(i).

March 2006 50



• Congress did not authorize the Agencies to hold flexibility above all other considerations. To the contrary, although the statute sets forth the general requirement that the NSPS be “flexible,” 5 U.S.C. 9902(b)(1), it also specifically requires that any appeals process established under the NSPS must “provide employees . . .fair treatment in any appeals that they bring. . . .” p. 68.

March 2006 51


Judge Sullivan (ctd.):

• “Principles of fairness are not satisfied if an employee must expend all of his or her time and resources navigating an unfair appeals process simply because at some later stage the DoD’s decision can be reviewed under the still deferential arbitrary and capricious standard.” p. 67

March 2006 52



• DOD was not allowed to second-guess decisions of MSPB AJ’s or Arbitrators. “While allowing one party to modify or reverse the decision of an independent AJ may be “flexible,” the court fails to see how it can be considered “fair.” p. 66.

March 2006 53

AFGE v. Rumsfeld, Part 4 Appeals – Unfair Standards

DOD also tried to limit decisionmakers’ independent authority in a number of ways:

• AJ’s and arbitrators would be prohibited from mitigating or reducing penalties unless they are “totally unwarranted in light of all pertinent circumstances.” 9901.807(f)(2)(ii), 923(a).

• They must also apply the “maximum justifiable penalty” and must give all deference to the agency’s mission in every case. 9901.107(a)(2), 807(f)(2)(ii), 923(a).

• Adverse actions also could not be reversed based on the way the charge is labeled or conduct is characterized, or based on the way the performance expectation is expressed. 807(f)(3), (4).

March 2006 54


Judge Sullivan agreed with Judge Collyer: Such standards of review are unfair and “put the thumbs of the Agencies down hard on the scales of justice in their favor.” DHS case, 385 F. Supp. 2d at 35 (rejecting “wholly without justification” standard); DOD case, at 69 (rejecting “totally unwarranted” and “maximum justifiable” penalty standards).

March 2006 55



“DoD . . . cannot use their intervening unfair level of review to justify an unfair mitigation standard. Two wrongs cannot make a right.” pp. 69-70.

March 2006 56

AFGE v. Rumsfeld, Part 4 Appeals-Limits on MSPB

“. . . no personnel action shall be stayed and no interim relief shall be granted during the pendency of the Board’s review unless specifically ordered by the Board.”

NDAA § 9902(h)(4)

March 2006 57

AFGE v. Rumsfeld, Part 4Appeals—interim relief

BUT DoD tried to ignore this part of the law:

• DoD’s regulations provide that the Secretary may, “in his or her sole, exclusive and unreviewable discretion,” choose to ignore the specific order of the MSPB for such interim relief. § 9901.807 (f)(5)(i).

• The regulations thus not only violate the NDAA law, they disregard the independent law, jurisdiction, power and expertise of the MSPB itself.

March 2006 58

AFGE v. Rumsfeld, Part 4Appeals—interim relief


Limits on Interim relief improperly allow DOD to ignore MSPB reinstatement orders when an employee has won his or her hearing. p. 70

March 2006 59

AFGE v Rumsfeld, Part 4 Adverse Actions/MRO’s

Finally, AFGE argued that DoD also broke the law by authorizing “Mandatory Removal Offenses” or MRO’s. In such cases,

– arbitrators would be barred from reviewing such cases at all, 9901.922(c)(4),

– MSPB AJ’s would be barred from mitigating or reversing such a removal, 9901.712(c), 807(f), 808(b),(c).

– Even if an AJ declared the employee innocent after a full hearing, DoD gave itself the right to reverse the AJ’s decision and to force the innocent employee to appeal and win a second time at the full MSPB. 9901.807(g).

– Even if the employee won twice, both at the AJ level and again at the MSPB, DoD could have removed the employee again based on the same evidence. 9901.808(d).

March 2006 60

Subpart G - Adverse Actions Mandatory removal offenses

(MRO’s)(a) “The Secretary has the sole, exclusive, and

unreviewable discretion to identify offenses that have a direct and substantial adverse impact on the Department’s national Security mission. Such offenses will be identified in advance. . .published in the Federal Register, and made known to all employees . . . on a periodic basis, as appropriate . . .

• Only the Secretary, an AJ or the full MSPB can

mitigate a mandatory removal penalty; arbitrators are barred from hearing such cases. 9901.712(c), 808.

March 2006 61


• DOD’s MRO process is nearly identical to that adopted by DHS.

• As in DHS, AFGE challenged DoD MRO’s as unfair and violating the statutory guarantees of fair treatment and due process.

• But the outcomes were different!

March 2006 62


• Judge Collyer found that although it was “extraordinary” for Congress to give DHS the power to limit the power of MSPB over MRO’s, and “although the question is not entirely clear,” DHS was allowed to interpret its own law. She therefore dismissed the unions’ challenge to MRO’s.

• The Unions have appealed this finding.

March 2006 63


• Judge Sullivan, by contrast, granted no deference to DOD. He found instead that the DOD regulation allowing “Mandatory Removal Offenses” clearly fails to provide employees with fair treatment and, therefore are illegal. p. 74

March 2006 64


Judge Sullivan continued:

“As discussed above, DoD has used the authority under § 9902(m) to severely restrict collective bargaining rights in the name of its “national security mission.” Given DoD’s assumption up to this point that the “national security mission” need not provide for collective bargaining rights, the Court is troubled that nothing in the new regulations prevents routine acts of labor organizing to be considered contrary to the department’s mission [and thus to be labeled an MRO]. p. 74.

March 2006 65

AFGE v. Rumsfeld

OTHER ISSUES

• The Judge found that unions did have standing to appeal the regs at this time.

• He found that the case was “ripe” or ready for appeal.

March 2006 66

AFGE v. Rumsfeld

SEVERABILITY• Judge Sulllivan found that the legal changes were not

“severable” (or could not be separated) from the illegal changes, and so all three sections had to be thrown out.

• He did invite DoD to file a brief arguing that the parts of the labor relations section to which the unions did not object should be allowed to go into effect, if DOD chooses to do so.

• Judge Collyer issued the same invitation to DHS in that case, but then turned down DHS’s proposal, and ruled instead that the entire labor relations section had to be scrapped.

March 2006 67

AFGE v. Rumsfeld

BOTTOM LINE: • Judge Sulllivan issued a permanent injunction

against the Labor relations, adverse actions and appeals sections of DOD’s NSPS regulations. permanently enjoined.

• Unless the Judge changes his mind and decides that parts of the sections (i.e. national bargaining, time limits for bargaining) can be “severed” and can be allowed to go into effect, or his decision is reversed on appeal, DOD cannot proceed with those three sections.

March 2006 68

What happens next?

BOTTOM LINE (ctd): • DOD lawyers will appeal Judge Sullivan’s

decision, just as DHS is doing.• AFGE may appeal certain issues as well• The DHS appeal decision will likely be

issued first, will likely control final outcome of DoD appeal

• “Continuing collaboration” will also continue.

March 2006 69

Can DoD still implement NSPS?

• Yes, but not all of it. The lawsuit did not challenge the NSPS Classification, Pay banding, Performance management, hiring, or RIF regulations.

• DOD can proceed with those five sections on its “Spiral schedule.”

• AFGE will be watching closely to see how DOD implements its Pay banding, Performance management, future pay decisions, and RIF’s when it begins to convert BU members to NSPS

March 2006 70

QUESTIONS & ANSWERS

March 2006 71

What happens next?

NSPS “human resources” changes:Pay Banding, Pay Increases, Performance Ratings, Hiring

& RIF’s– To be phased in by groups– Spiral 1.1 is pilot, for non-BU only in April 06 – Spiral 1.2 (for some BU GS employees) in Oct 06,– then Spirals 1.3, 2 and 3 to cover rest of GS,

WG, Prevailing rate, NAFI? employees– Eventually intended to cover vast majority of DoD

employees

March 2006 72

AFGE on NSPS

Update on

Career Groups, Pay,

& Performance Management

March 2006 73

March 2006 74

March 2006 75

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AFGE on NSPS

• Locality pay will not be given to everyone in the same locality

• One employee might get no local market supplement or a smaller or larger one than a co-worker in the same location, and even the same band, but a different occupation or specialization

• Pay will include many factors outside an employee’s control

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• DoD issued Performance Management Implementing issuance 11/22/2005 with deadline for union comments 12/23/2005

• DoD changed the deadline to 12/30/2005• 12/23/2005, DoD withdrew the Issuance to

review and rewrite.• DoD reissued issuance 2/24/06 • The following slides are from DoD’s

2/16/06 briefing to the UDWC.

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AFGE on NSPS

• Supervisor is supposed to observe and communicate with employee during the rating period

• Supervisor recommends rating, number of shares and distribution between base pay or cash bonus, but must not tell employee

• Pay pool panel reconciles recommendations• Pay pool manager authorizes rating and payout• Supervisor tells employee

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• Employees’ ratings & payouts decided by managers who have not communicated with them during the year

• Ratings and payouts can be big surprises to employees

• Employees with timid, incompetent, politically naïve, or unpersuasive supervisors will be disadvantaged

• DoD says it will guard against payouts being based on supervisors’ negotiating skills rather than employees’ performance

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AFGE on NSPS

• Will NSPS reverse decades of poor management of performance?

• What other duties will be taken away from employees, supervisors, and their managers so they can devote more time to performance management?

• A poor performance management system will have greater impact on your pay and retention under NSPS than under GS.

Documents

MARCH 2006 UPDATE American Federation of Government Employees Field Services Department