MARCH 2006 UPDATE
American Federation of Government Employees
March 2006
Field Services Department
1
WHAT IS NSPS?
NSPS is a brand new system for:
1.
2.
3.
4.
5.
6.
7.
8.
Job Classification
Pay
Performance Management
Staffing and Employment
Workforce Shaping (aka Reductions in Force)
Adverse Actions
Appeals
Labor Relations
March 2006
2
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
3
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
4
JUDGE SULLIVAN
RULES FOR
AFGE!!!!!
American Federation of Government Employees
Field Services Department
March 2006
5
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
6
AFGE v Rumsfeld
CONTINUED
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
7
AFGE v Rumsfeld
CONTINUED
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
8
AFGE v Rumsfeld
CONTINUED
So what did DoD do?
March 2006
9
AFGE v Rumsfeld
CONTINUED
AFGE asserted in our lawsuit that
DoD broke the law in five different
ways:
March 2006
10
AFGE v Rumsfeld
CONTINUED
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
11
AFGE v Rumsfeld
CONTINUED
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
12
AFGE v Rumsfeld, Part 1 (Development)
AFGE claimed that DoD illegally failed to develop the LR system in
conjunction with the unions.
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
March 2006
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.
13
AFGE v Rumsfeld, Part 1 (Development)
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
14
AFGE v Rumsfeld, Part 1 (Development)
•
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
15
AFGE v Rumsfeld, Part 2
(Labor Relations)
AFGE claimed that DoD’s regulations illegally waive all of
Chapter 71, including removing bargaining rights and
cancelling existing contract provisions.
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
March 2006
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!
16
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.
March 2006
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);
17
AFGE v Rumsfeld, Part 2; Plaintiffs’ Comparison of the
Statutory Language and the Challenged Regulation
(Labor-Management Relations)
NDAA Statutory Language
Challenged Regulations (ctd).
•
5 U.S.C. § 9902(b)(4):
● 5 C.F.R. § 9901.902:
Any system established under
subsection (a) shall-- … ensure
When a specified category of
employees may organize, bargain
employees is covered by the laborcollectively as provided for in this
management relations system
chapter, and participate through labor
established under this subpart, the
provisions of 5 U.S.C. 7101 through
organizations of their own choosing in
7135 are modified and replaced by the
decisions that may affect them, subject
provisions in this subpart with respect
to the provisions of this chapter and
to that category, except as otherwise
any exclusion from coverage or
specified in this subpart.
Implementing issuances may be
limitation on negotiability established
prescribed to carry out the provisions
pursuant to law.
of this subpart.
● 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.
March 2006
18
AFGE v Rumsfeld, Part 2
(Labor Relations)
Current rules
5 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
March 2006
NSPS Rules
5 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
19
AFGE v Rumsfeld, Part 2
(Labor Relations)
AFGE claimed that DoD’s regulations illegally waive all of
Chapter 71, including removing bargaining rights and
cancelling existing contract provisions.
! right to make certain
JUDGE: DoD did have the
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
March 2006
20
AFGE v Rumsfeld, Part 2
(Labor Relations)
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
21
AFGE v Rumsfeld, Part 2
(Labor Relations)
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
22
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
23
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
24
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
25
AFGE v. Rumsfeld Part 2
Labor Relations
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
26
AFGE v. Rumsfeld Part 2
Labor Relations
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
27
AFGE v. Rumsfeld Part 2
Labor Relations
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
28
AFGE v. Rumsfeld Part 2
Labor Relations
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
29
Management Rights
CONTINUED
(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
30
Management Rights
CONTINUED
• (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
31
Management Rights
CONTINUED
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
32
AFGE v Rumsfeld, Part 2
Management 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
33
AFGE v Rumsfeld, Part 2
Management 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
34
AFGE v Rumsfeld, Part 2
Management Rights, ctd
4.
5.
6.
7.
March 2006
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);
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);
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
grants the Secretary “sole, exclusive, and unreviewable
discretion” to determine whether any negotiated arrangement
or procedure will be binding, § 9901.910(h).
35
AFGE v Rumsfeld, Part 2
Management Rights, ctd
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
36
AFGE v Rumsfeld, Part 2
Management Rights, ctd
Judge Sullivan agreed:
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
37
AFGE v Rumsfeld, Part 2
Management Rights, ctd
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
38
AFGE v Rumsfeld, Part 2
Management Rights, ctd
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
39
AFGE v Rumsfeld, Part 2
Labor Relations, CTD
AFGE argued that DoD made other illegal and
unauthorized changes to Chapter 71:
–
–
–
–
–
–
–
March 2006
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.
40
AFGE v Rumsfeld, Part 2
Labor Relations, CTD
Judge Sullivan agreed:
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
41
AFGE v Rumsfeld, Part 2
Labor Relations, CTD
Judge Sullivan agreed:
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
42
AFGE v Rumsfeld, Part 3
NS 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
43
AFGE v Rumsfeld, Part 3; Plaintiffs’ Comparison of the
Statutory Language and the Challenged Regulation
(Labor-Management Review Board )
Statutory Language (NDAA):
Challenged Regulations:
5 U.S.C. §9902(m)(6):
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
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.
March 2006
44
AFGE v Rumsfeld, Part 3
NS Labor Relations Board
Judge Sullivan agreed:
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
45
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
46
AFGE v Rumsfeld, Part 4
Appeals
Current Title 5 rules
Chapters 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
March 2006
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
47
AFGE v. Rumsfeld, Part 4
Appeals-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
48
AFGE v. Rumsfeld, Part 4
Appeals-DOD level 2 Review
– 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
49
AFGE v. Rumsfeld, Part 4
Appeals-DOD level 2 Review
Judge Sullivan agreed:
• 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
50
AFGE v. Rumsfeld, Part 4
Appeals-DOD level 2 Review
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
51
AFGE v. Rumsfeld, Part 4
Appeals-DOD level 2 Review
Judge Sullivan (ctd.):
• 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
52
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).
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AFGE v. Rumsfeld, Part 4
Appeals – Unfair Standards
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).
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AFGE v. Rumsfeld, Part 4
Appeals – Unfair Standards
Judge Sullivan (ctd.):
“DoD . . . cannot use their intervening
unfair level of review to justify an unfair
mitigation standard. Two wrongs cannot
make a right.” pp. 69-70.
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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)
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AFGE v. Rumsfeld, Part 4
Appeals—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.
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AFGE v. Rumsfeld, Part 4
Appeals—interim relief
Judge Sullivan agreed:
Limits on Interim relief improperly allow DOD to
ignore MSPB reinstatement orders when an
employee has won his or her hearing. p. 70
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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).
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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.
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AFGE v Rumsfeld, Part 4
Adverse Actions/MRO’s
• 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!
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AFGE v Rumsfeld, Part 4
Adverse Actions/MRO’s
• 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.
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AFGE v Rumsfeld, Part 4
Adverse Actions/MRO’s
• 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
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AFGE v Rumsfeld, Part 4
Adverse Actions/MRO’s
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.
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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.
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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.
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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.
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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.
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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
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QUESTIONS & ANSWERS
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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
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AFGE on NSPS
Update on
Career Groups, Pay,
& Performance Management
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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
March 2006
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AFGE on NSPS
• 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
March 2006
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AFGE on NSPS
• 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.
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