April 28, 2006
NSPS hearing delayed until fall
Source: Federal Times
By MOLLIE ZIEGLER
The Pentagon’s appeal of a federal judge’s decision to block portions of its new personnel system will not proceed until fall at the earliest, according to the program executive officer in charge of the system.
The U.S. District Court for the District of Columbia is not expected to get to the National Security Personnel System (NSPS) case before it recesses for summer, Mary Lacey said.
Judge Emmett Sullivan of that same court ordered in February that DoD could not roll out its planned new rules to govern labor-management relations because they would undermine employees’ collective bargaining rights.
“Hopefully we’ll have a hearing this fall,” she said.
Meanwhile, the American Federation of Government Employees, which joined 12 other unions to sue DoD over NSPS, announced it would file its own appeal May 1 of portions of Sullivan’s ruling that the union disagreed with.
The Pentagon was scheduled to convert the first 11,000 civil servants into the new system at midnight on April 30.
The group of Defense agencies to be covered first by NSPS — called Spiral 1.1 — has been going through training for two years, Lacey said. Most Spiral 1.1 agencies have assigned employees and managers to pay pools — the groups in which employee performance is compared for the purpose of performance payouts, she said. Lacey has been traveling across the country to meet with managers and employees enrolled in Spiral 1.1.
“Employees are trained. Supervisors are trained. Leaders are leading. We are good to go,” Lacey said at the Combined Workforce Conference in Falls Church, Va., on April 27.
Employees being transitioned into NSPS will receive the next step increase that would be due them under the old GS system, prorated for the number of pay periods left until they would have normally received that increase. Lacey said the average buy-in was $962.
Employees who receive locality pay will instead receive a local market supplement under NSPS, she said. While the amount will be the same as their locality pay adjustment for now, NSPS planners hope to use local market supplements to help recruit and retain for specific jobs.
At press time, Defense Deputy Secretary Gordon England was slated to approve the final details of the new personnel system on April 28.
April 28, 2006
DoD workers seek union status on eve of personnel changes
By Karen Rutzick
Source: GovExec.com
A group of about 100 civilian employees scheduled to enter the Defense Department's new personnel system Sunday filed a petition this week for representation by a union, in an attempt to duck the transition.
Employees at the Navy's Human Performance Center in Orlando, Fla., asked the Federal Labor Relations Authority to let the American Federation of Government Employees represent them. The performance center workers are part of the group of 11,000 nonbargaining-unit employees the Pentagon has selected to venture into its new pay-for-performance system first.
Employees had hoped a move toward union representation would at least stall entrance into the National Security Personnel System. When federal workers are in the process of an election, management is not supposed to make critical changes to their workplace rules, said Sarah Starrett, an AFGE attorney.
AFGE asked Defense officials to delay this group's entrance into the new personnel system until the FLRA makes a decision, but the Navy informed AFGE Friday that it would still enter the employees into NSPS.
"They do not want to go under NSPS, and they're hoping that the union can help them in bargaining with management," Starrett said. "We're certainly willing to represent them. We're going to have to wait and see if they have to go through an FLRA election and whether they'll be certified."
NSPS is the Pentagon's congressionally authorized personnel overhaul, designed to modernize management by scrapping automatic pay raises in favor of pay-for-performance and replacing the General Schedule pay ladder with broad paybands.
The system also seeks to dramatically change Defense's labor relations system by giving management the ability to override collective bargaining agreements, limiting topics subject to bargaining and moving the appeals process within the department.
Immediately following the department's release of the NSPS regulations, a coalition of unions representing department employees sued over the labor relations changes. A federal judge ruled in favor of the employees in February, and the Pentagon filed an appeal of that ruling in mid-April.
The judge's ruling blocked implementation of the labor changes, forcing the department to significantly scale back the first group of NSPS employees from about 65,000 to 11,000, because it could not include unionized workers without negotiating a new contract.
Jill Crumpacker, executive director of the FLRA, said the Orlando workers' petition was filed in the wrong region and is being transferred, after which the case will be opened and reviewed.
Deputy Secretary of Defense Gordon England, the top official involved in the creation of NSPS, held a signing ceremony Friday at the Pentagon to mark the entrance of the first group of 11,000 employees into the new personnel system.
April 12, 2006
UNION FILES MOTION TO HALT CBP ELECTION
Source: fednews-online
The battle over which union will represent Customs and Border Patrol employees has become much more complicated.
Last week, the National Association of Agriculture Employees filed a motion with the United States Court of Appeals for the Ninth District that would stop CBP from holding an election to determine which union will represent the agency's professional employees.
In the motion, NAAE argues that the Federal Labor Relations Authority "erroneously reclassified" 847 CBP "agriculture specialists" currently in the union as "non-professionals." Labeling those employees as non-professional would eliminate their eligibility for union representation.
NAAE has represented the agriculture specialists for 33 years. Before entering the Department of Homeland Security four years ago, the agriculture specialists were a part of the U.S. Department of Agriculture's Animal and Plant Heath Inspection Service in its Plant Protection and Quarantine Unit.
NAAE's motion can be found at http://www.aginspectors.org/9th.htm.
In late March, FLRA announced plans to mail ballots to approximately 21,000 eligible CBP employees May 9. Ballots must be returned by June 22, and the Authority will begin tallying votes June 27.
CBP employees will have three choices on the current ballot: the American Federation of Government Employees, the National Treasury Employees Union or no union. If no choice garners 50 percent of the votes, a runoff will feature the top two vote-getting options.
The Homeland Security Act of 2002 bundled 22 agencies into the Department of Homeland Security. Two of the those agencies -- Customs Service, a part of the Department of Treasury, and Immigration and Naturalization Services, a Department of Justice agency -- merged to form CBP.
Both unions have a foothold in CBP -- AFGE mostly represents employees who entered the agency through DOJ and most NTEU members were one-time Treasury employees.
April 6, 2006
Appeals court hears arguments in DHS labor rights case
By Karen Rutzick
A three-judge panel heard arguments Thursday in an appeal of an August decision that thwarted the Homeland Security Department's new labor relations system.
The panel from the U.S. Court of Appeals for the District of Columbia, made up of judges Harry Edwards, A. Raymond Randolph and Thomas Griffith, questioned the government forcefully over the department's plan to allow senior-level officials to override collective bargaining agreements after the fact.
"Why don't we get to the heart of the issue?" Edwards asked. "Where is it in the history of our country under any collective bargaining scheme ... that allows the employer to unilaterally abrogate an agreement?"
That issue -- management's authority to issue a directive at any time that negates a prior agreement -- was central in District Court Judge Rosemary Collyer's summer decision to enjoin the system. Her ruling was appealed by both sides on issues they lost.
Edwards, an appointee of President Carter who often is cited as an expert in the field and wrote a book called Labor Relations Law in the Public Sector, was the most outspoken of the judges, saying it is "nonsense" to describe DHS' desired system as collective bargaining.
When lawmakers gave DHS authority in 2002 to create a new personnel system with more flexible workplace rules for the sake of national security, they required the department to preserve a system of collective bargaining.
"Congress did not say you could ignore collective bargaining rights," Edwards said. "It said just the opposite."
A central part of DHS' personnel overhaul is the plan to replace the General Schedule pay system with broad pay bands and to give raises based on market studies and performance evaluations, rather than simply time in service. The department is still planning to begin putting its pay reforms, which are not part of the lawsuit, into place this year.
Griffith, appointed by President Bush in June, asked government lawyer Thomas Bondy what he thought Congress meant when it said to preserve collective bargaining, to which Bondy replied that the new DHS system indeed retains the "trappings" of collective bargaining.
"It doesn't say trappings," Griffith said. "It says the right to collective bargaining." Griffith also used Collyer's wording, referring to contracts under the new DHS system as "illusory."
DHS' new system also modifies the role of the Federal Labor Relations Authority, a governmentwide body that adjudicates federal labor-management disputes. DHS regulations creating the system largely replace the FLRA with an internal Homeland Security Labor Relations Board, relegating the FLRA to an appeals role.
Collyer ruled that the agency illegally altered the FLRA's duties without congressional authority. Unions bristle at the notion of management-appointed board members deciding labor-management disputes.
Judge Randolph, a George H.W. Bush appointee, questioned Bondy on that point, saying Congress only authorized the department to rework itself.
"The FLRA is not in Homeland Security," Randolph said. "It's a separate, independent body outside of Homeland Security, right?"
Edwards added to that line of questioning, asking, "Where do you get the authority to tell other existing agencies what to do?"
The unions, represented by Gregory O'Duden, general counsel of the National Treasury Employees Union, also were questioned hard on their appeal of the department's ability to limit matters that are subject to collective bargaining in the first place, which Collyer let stand.
Even if the unions are successful in removing management's right to renege on contracts after the fact, the ability to limit the scope of bargaining still would allow the department to remove whole subjects from collective bargaining, limiting union power.
Griffith asked O'Duden, "Why shouldn't we just wait to see what happens here?," questioning the grounds on which the court could rule what is and is not allowed to be in the scope of collective bargaining.
The appeal is on an expedited schedule. O'Duden told reporters after the arguments that an opinion could take two to three months, but there is no set timeline.
In another wrinkle, the two largest unions in the coalition that filed the lawsuit, NTEU and the American Federation of Government Employees, are scheduled to face off in a union election May 9 to represent the Customs and Border Protection employees in DHS. If NTEU loses, it would not represent any employees in the department.
