November 28, 2005
Judge sets date to consider challenge to Defense personnel rules
Source: GovExec.com
By Tom Shoop and Karen Rutzick
A federal judge has set a date of Jan. 24 to hear arguments in a lawsuit filed by a group of labor unions challenging the Defense Department's new National Security Personnel System.
Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia also said he would ensure that the case would be decided expeditiously, according to the American Federation of Government Employees, one of the unions that filed the suit.
"We are eager to make our case on the illegality of the Department of Defense's new workplace rules," said Joe Goldberg, AFGE's associate general counsel.
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November 19, 2005
Congress backs 3.1 percent raise, competitive sourcing measures
By Amelia Gruber
Source: GovExec.com
A compromise version of the fiscal 2006 Transportation-Treasury bill approved by the House Friday includes language designed to help federal employees whose jobs are placed up for competition with private firms under the Bush administration's competitive sourcing initiative.
On Thursday night, House-Senate negotiators adopted union-backed competitive sourcing provisions almost identical to those approved by the Senate in mid-October.
The competitive sourcing language, advanced by Kit Bond, R-Mo., and Barbara Mikulski, D-Md., would require agencies to let in-house employees form a team and defend their jobs against outside bidders any time more than 10 positions are at stake. In those contests, federal employee teams would be granted a cost advantage amounting to either 10 percent of personnel-related costs or $10 million--whichever is lower.
The conference committee also passed a 3.1 percent pay raise for federal white collar employees in 2006. That was the number included in both the Senate and House bills, providing pay parity between civilians and military service members. The Bush administration had proposed a 2.3 percent increase, but has not threatened to veto the bill over this issue.
In recent years, the White House has succeeded in last-minute attempts to alter conference committee language considered detrimental to the competitive sourcing effort. However, the House approved this year's conference report Friday by a vote of 392-31, leaving little time for adjustments.
Once the Senate approves the conference version, the bill (H.R. 3058) will head to President Bush's desk for his signature.
The Bush administration cited the Bond-Mikulski competitive sourcing language and threatened to veto the Transportation-Treasury bill if the final version were to "significantly erode" the President's Management Agenda. Competitive sourcing is one of five main items on that agenda.
But Office of Management and Budget spokesman Alex Conant said that "in further discussions with Congress," the administration has determined that the provisions don't "significantly erode" its agenda. "We will, however, continue to monitor their impact over the coming year and, if they are found to limit the benefit the taxpayers get from the PMA, we will work with Congress to fix them," Conant said in an e-mail statement.
The conference negotiators did differ from Bond and Mikulski by exempting the Defense Department and parts of the Transportation Security Administration from the competitive sourcing requirements for contests involving 10 or more jobs. The Pentagon, however, is likely to face competitive sourcing restrictions in its own appropriations bill, which has not emerged from negotiations.
Union officials and Democrats on both the House and Senate side applauded the Transportation-Treasury conference report.
"This is a huge victory for federal employees and is the culmination of a battle Sen. Mikulski and I have waged for the last three years," said Rep. Chris Van Hollen, D-Md., in a statement.
The House version of the bill contained a provision introduced by Van Hollen that would have required the Office of Management and Budget to revise the current rules on public-private job competitions, contained in the May 2003 version of Circular A-76.
The Bond-Mikulski language is preferable to the Van Hollen measure, said Stan Soloway, president of the Professional Services Council, an Arlington, Va.-based group representing federal contractors. But the language adopted by conferees would "not make life any easier," he said.
"There's a continuing irony where Congress wants to generate better management but continues to make even modest changes that make it harder to get competition," Soloway said. The language would not completely eliminate "best value" competitions, in which agencies can select a winner based on technical expertise and factors besides a pure cost-comparison, but would restrict the practice, he said.
But union officials said the Bond-Mikulski language is necessary to place federal employees on a level playing field with outside bidders. "Inclusion of the . . . reform provisions is a big first step toward eliminating waste in the OMB Circular A-76 privatization process," said John Gage, president of the American Federation of Government Employees.
Gage noted that Van Hollen and Mikulski have three times tried to get similar language passed.
Last year, language that would have placed restrictions on competitive sourcing was dropped from the conference version of an omnibus appropriations bill that included Transportation-Treasury funding, at the last minute. Two years ago, the administration also made late changes to a conference report, weakening competitive sourcing provisions in that round of appropriations and creating complex sets of job contest rules that varied even across agencies covered under the omnibus bill.
November 18, 2005
Senators skeptical of Pentagon plan for personnel reform
By Karen Rutzick Source: GovExec.com
A group of senators instrumental in addressing federal personnel issues voiced concern at a hearing Thursday over the final regulations on the Defense Department's National Security Personnel System.
Sen. Susan Collins, R-Maine, expressed discontent with the planned makeup of the National Security Labor Relations Board, which would replace the Federal Labor Relations Authority in handling the Pentagon's labor-management disputes. Collins said she is concerned because the secretary of Defense is slated to have sole responsibility for appointing members of the board.
"I believe it would be wise to designate one these slots for a union representative," Collins said.
November 17, 2005
Defense to hold off on implementing NSPS labor rules
Source: GovExec.com
By Karen Rutzick
The Defense Department and unions reached an agreement Wednesday to delay implementation of the National Security Personnel System's labor relations portions until February
Government and union lawyers filed a joint request for the postponement at the U.S. District Court for the District of Columbia. The agreement is meant to make it unnecessary for unions to seek a temporary restraining order. Such an order would halt implementation until a judge has ruled on the merits of the case.
A coalition of 10 labor unions earlier this month sued the Defense Department over final regulations for NSPS, a system designed to streamline labor relations and replace the General chedule with market- and performance-based compensation. The department published the regulations in the Nov. 1 Federal Register.
November 16, 2005
AFGE NEGOTIATES DELAYED IMPLEMENTATION OF DOD PERSONNEL RULES UNTIL FEBRUARY 2006
WASHINGTON-The American Federation of Government Employees announced the negotiation of an agreement with officials of the Justice Department to delay implementation of new Department of Defense personnel rules-the National Security Personnel System-until February of 2006. Justice officials, who represent DoD in legal negotiations and proceedings with the unions over NSPS, finalized the agreement with AFGE late Tuesday. AFGE is a member of the United Department of Defense Workers Coalition (UDWC), an umbrella organization of labor unions representing civilian defense workers, and signed the agreement with the consent of the UDWC.
The agreement mitigates the need for AFGE to file a temporary restraining order against the work rules. Under the agreement, AFGE and DoJ will jointly petition District Court Judge Emmet G. Sullivan, who has been assigned the case, to hear arguments on the merits some time during the week of January 9, 2006. In return, DoD will refrain from implementing major portions of the new rules until February 1, 2006.
In February of 2005, the UDWC filed a lawsuit against DoD when the initial proposal was released to the public. Just last week the UDWC filed a subsequent lawsuit upon release of the final NSPS rules. AFGE won a major legal victory against similar personnel changes proposed for the Department of Homeland Security when federal District Court Judge Rosemary M. Collyer ruled that the DHS rules could not be implemented because of specific illegal provisions.
When DoD published the final NSPS rules in the "Federal Register" on November 1, five major points of disagreement remained in spite of over a year of meetings between representatives of DoD and the Office of Personnel Management with UDWC members.
"For months DoD representatives solely went through the motions, instead of actively engaging and negotiating with union representatives to develop a reasonable, legal personnel system for the Department of Defense," said AFGE National President John Gage. "Very soon the more than 750,000 civilian DoD workers will have their concerns given legitimate consideration by the courts of the United States."
The five major points of disagreement between the UDWC and the Department of Defense are:
1. NSPS radically curtails collective bargaining. DoD has granted itself the authority to unilaterally override provisions in labor contracts and declare issues off limit for contract negotiations, all via the use of agency issuances.
2. NSPS ends the right to appeal labor-management disputes to an impartial third party by requiring that an internal board, appointed by the Secretary of Defense, review such issues. In violation of American legal principles, the internal labor relations board would suffer from an inherent conflict of interest that makes it incapable of rendering fair decisions.
3. NSPS establishes an unprecedented, and virtually impossible to meet, legal threshold for overturning or reducing disciplinary actions or penalties. The new standard that must be met in order to mitigate penalties, "totally unwarranted," is a violation of American jurisprudence.
4. NSPS provides no safeguards to prevent a general lowering of pay for the civilian defense workforce. NSPS permits the lowering of entry level salaries and the withholding of annual raises for workers who are performing satisfactorily.
5. NSPS weakens veterans preference and completely eliminates seniority as factors considered during a reduction-in-force. Only "ratings of record" will be considered for retention purposes in the event of a RIF, establishing an ambiguous standard in terms of how many years of ratings will be considered and how employees will be evaluated when there are differences in tenure even for the period to be considered. Moreover, in many circumstances under the regulations, veterans will be prevented from competing against non-veterans with less seniority or even "retreating" to the jobs they previously held.
November 15, 2005
AFGE Local 1923 Administration outlines steps to government wide personnel overhaul
Source: GovExec.com
By Karen Rutzick
The Bush administration on Monday released a rough plan for implementing the broad changes that would be required if Congress passes yet-to-be-introduced personnel reform legislation.
The move marks the latest step in the administration's quest for a governmentwide overhaul of pay systems.
Dubbed the Working for America Act, the draft legislation was written by the Office of Personnel Management and the Office of Management and Budget. It would replace the General Schedule with performance and market-based pay, requiring reforms similar to those in progress at the Homeland Security and Defense departments.
Although the bill has not been introduced in Congress and officials have said it is still a work in progress, OMB and OPM outlined the implementation plan in response to queries from Sens. Susan Collins, R-Maine, and George Voinovich, R-Ohio.
The plan would grant OPM significant influence over the system, especially at the outset. The personnel agency would classify jobs and conduct research in order to set market-sensitive locality pay. It would also establish a governmentwide performance appraisal system, upon which raises would be based.
OPM would consult with OMB and the Federal Pay Council to determine the minimum and maximum salary for each payband as well as the local market pay that would supplant locality pay.
OPM also would determine how other agencies could divide up performance-based raises for the first five years. After that, agencies would manage their own pay-based systems within the boundaries of OPM regulations.
According to the plan, OPM would consult the Chief Human Capital Officers Council as well as "appropriate stakeholders" to design performance appraisal systems. This could result in fixed regulations or guidance, the plan stated.
In addition to the implementation plans, Collins and Voinovich asked OMB and OPM to expound upon the existing alternative personnel systems they looked to in writing the legislation.
"Twenty-five years of experience with 90,000 federal employees on alternative pay systems tells us pay for performance is better than the current system," said OMB Deputy Director for Management Clay Johnson. "Governmentwide pay reform can improve program results and employees' satisfaction."
In its response to Collins and Voinovich, the administration reported that employee turnover in four demonstration projects dropped significantly after implementation of new systems.
As an example, OMB and OPM held up the Army Medical Research and Materiel Command, whose turnover rate fell from 75 percent to 37 percent from 1996-2000 for employees rated "outstanding." The demonstration project started in 1998.
The administration also noted that agencies funded their new systems from their existing budgets. There were some start-up costs, however, for automated classification systems and conversion of employees to new payroll systems.
After a transition period, agencies spent the same amount on performance-based raises as they previously did on within-grade, quality-step and career ladder pay hikes, the administration reported.
The report found that agencies maintained control of costs in six areas:
Method of converting pay rates for individual employees to their rates in paybands.
- Policy on starting salaries.
- Type of pay progression and system of performance management.
- Size and mix of salary and bonus budgets.
- Choice of full-performance level pay rates.
- Overall number and distribution of positions established across bands and work levels.
November 7, 2005
Unions file suit challenging Defense personnel system
Source: Govexec.com
By Tom Shoop
A coalition of labor unions filed a lawsuit Monday challenging work rules issued by the Pentagon in late October under its new National Security Personnel System.
The unions charged that the Pentagon failed to adequately consult with labor organizations before issuing the new regulations.
"Despite Pentagon rhetoric to the contrary," said John Gage, president of the American Federation of Government Employees, "DoD merely went through the motions of meeting with the unions. No meaningful consultation took place. Instead of working with the long-standing representatives of the military's loyal civilian employees, the Pentagon apparently would rather duke this out in federal court."
Navy Secretary Gordon England, who headed the NSPS effort in the Pentagon, said when the new regulations were released last month that the department had been "extremely collaborative" in developing them. "Frankly, whoever could help us has been consulted," he said.
In addition to AFGE, the following unions joined the suit: the Metal Trades Department of the AFL-CIO, the United Power Trades Organization, the International Federation of Professional and Technical Engineers, the International Brotherhood of Teamsters, the International Association of Fire Fighters, the Association of Civilian Technicians, the Laborers International Union, the National Association of Government Employees and the National Federation of Federal Employees.
"OPM and the Pentagon have swayed drastically from the NSPS authorizing law with respect to their unilateral creation of this misguided personnel policy," said Gregory Junemann, president of the International Federation of Professional and Technical Engineers. "By deciding to publish an NSPS that is illegal, they have elected to pursue a 'roll the dice' track, hoping that a court will somehow ignore both precedent and congressional intent."
The unions also argued that the new personnel system, which eventually will cover 650,000 employees, fails to safeguard employee rights to bargain collectively. The final NSPS regulations allow the Defense secretary, deputy secretary and "principal staff assistants" to override collective bargaining agreements on national security grounds.
In August, a federal judge ruled that the Homeland Security Department's new personnel system, which is in some respects similar to the Defense system, was illegal because it did not adequately provide for collective bargaining, in large part because it gave management the power to override existing contracts at any time.
NSPS officials said the law authorizing the Pentagon's system is different from the one authorizing DHS' system in that it does allow for senior officials to exercise such power.
November 4, 2005
AFGE Activists Stop Senate from
Cutting Pay Raise: But Stay Alert
Your actions do make a difference. AFGE activists nationwide unleashed a 24 hour blitz of emails and calls to their Senators this week. Their message was simple but critically important: “Don’t use the Senate’s so-called deficit reduction legislation to cut the 3.1% federal employee pay raise for 2006 already approved by both the House and Senate”. The calls and emails worked! The legislation passed by the Senate leaves the pay raise intact
AFGE activists should feel proud of their work. All AFGE members should also remain on High Alert. Both the House and the Senate are still debating $70 billion dollars in tax giveaways for the wealthy and big business. That, unfortunately, means continued debate over cuts in social programs that benefit working Americans.
November 4, 2005
AFGE, NTEU LEADERS DISCUSS PERSONNEL
SYSTEMS WITH OMB, GAO HEADS
Source: FedNews Online
Heads from two unions contending proposed federal personnel systems met with government leaders at a forum earlier this week.
The forum, sponsored by the Washington Post and the Council for Excellence in Government, featured a discussion of the future of federal personnel systems among:
* Clay Johnson III, Office of Management and Budget Deputy Director
* David Walker, Government Accountability Office Comptroller General
* Colleen Kelley, National Treasury Employees Union President
* John Gage, American Federation of Government Employees President
The four were questioned by moderator Patricia McGinnis, Council President, and audience members for almost two hours.
Gage opened the discussion by talking about what he thinks motivates federal employees to perform at their peak -- the chance for a promotion.
“In the current system, employees are competing against the work,” said Gage, explaining that once an employee demonstrates the capacity to perform higher-graded work, that employee is promoted.
“If something works, why are we throwing it out,” said Gage.
Johnson argued for needing a new system, one that incorporated performance-based pay raises that are predicated on predetermined goals before issuing.
“We can’t have situations at the end of the year where the manager says to the employee, ‘You know, in general, you’ve had an outstanding year’ and then gives out an outstanding raise,” said Johnson.
These predetermined goals would be collaboratively defined, Johnson said, to ensure sub par managers would not affect lower-level employees.
“For the first time, we would hold managers accountable for being good managers,” said Johnson.
“Sometimes we scare each other on how much we agree on how we want the [federal personnel systems] to look like in 10 years. But getting from here to there, has proven to be a very, very rocky road,” said Kelley.
Kelley agreed with Johnson’s assertion that collaboration was needed, saying a distinct timeline for seeking employee input was needed. She also said that when employee input is sought, it rarely finds its way into regulations.
“Those things have to change if there is to be a real belief on the part of the employees that their input is welcome,” said Kelley.
Walker reiterated his view that pay-for-performance and human capital reform may need to be separated.
“There’s great merit to modernizing our classification and compensation systems … But I believe the collective bargaining issue and the appeals process are much more complex, much more controversial, and quite frankly, untested on a large scale,” said Walker.
November 4, 2005
Pay raise spared in Senate budget measure
Source: GovExec.com
By Karen Rutzick
A measure to eliminate a 3.1 percent average pay raise for federal employees was not included among the $35 billion in budget cuts approved by the Senate Thursday. But the proposal isn't dead yet.
Seven Republican senators calling themselves the "Fiscal Watch Team" proposed last week to freeze non-law-enforcement federal pay next year. The proposal is part of an effort to cut the budget by $125 billion to help fund Katrina recovery efforts.
But the senators did not end up introducing a federal pay amendment to Thursday's deficit reduction bill ( S. 1932 ), which passed by a vote of 52-47. The bill contained language to increase premiums on student loans and make cuts in Medicare and Medicaid.
But Sen. John Ensign, R-Nev., a member of the Fiscal Watch Team, will "absolutely" introduce separate legislation to stop the raise, either as a stand-alone bill or as an amendment, said Jack Finn, his communications director.
"It wasn't a case of choosing not to," Finn said. "It was just a matter of a lot of work that has to be done before we're ready to introduce it."
Federal employee unions have expressed strong opposition to the proposed wage freeze. In a Nov. 2 letter, the American Federation of Government Employees urged senators to vote against such an amendment.
"Congress's longstanding bipartisan commitment to providing the same annual pay raises to federal civilian employees and military personnel is a recognition of the crucial contributions these civilian workers make to your nation's safety and security," the letter stated.
In a press release announcing the proposal, Ensign said, "it has taken a lot of hard work and a lot of tough decisions, but we have crafted legislation that we believe provides responsible and necessary cuts in government spending to offset the much-needed relief efforts in the wake of Hurricanes Katrina and Rita."
The House still has to act on its budget bill. Although no House member has suggested a freeze on federal pay, a group called the Republican Study Committee has proposed calculating retirement annuities for federal employees based on an average of their five highest-earning years of service, instead of a three-year average. Adding two years of lower pay would reduce retirees' pension benefits.
The RSC members also recommended a reduction in the government subsidy for some federal retirees who participate in the Federal Employees Health Benefits plan.
After the House votes on its cuts, the two chambers need to come to an agreement on the budget bill before sending it to President Bush for his signature.
Both the House and the Senate previously approved a 3.1 percent raise for civilian employees, as part of the fiscal 2006 Transportation-Treasury appropriations bill.
The Senate also voted in support of a Transportation-Treasury amendment to eliminate its own pay raise for 2006.
House and Senate negotiators must still reconcile differences on the Transportation-Treasury spending measure before it heads to Bush's desk.
November 1, 2005
Unions Prepare to Go to Court as Pentagon Issues Civil Service Plan
Source: Washington Post
By Stephen Barr
The Pentagon has rolled the dice. The plan to convert the first wave of 65,000 Defense Department civil service employees to a new performance-based pay system has been issued, and Bush administration officials have lined up behind it.
"We're anxious for DOD to succeed," Linda M. Springer , director of the Office of Personnel Management, told reporters at an Oct. 26 briefing. "We know they will succeed."
She added: "Obviously, all of us through government are watching how this goes. There's a lot at stake."
It may take years, of course, before the Defense Department can declare that the National Security Personnel System is a success. (In its regulation, the Pentagon promises that NSPS "will be operational and demonstrate success prior to November 2009.")
Success, to some extent, hinges on the outcome of court fights -- the first way station for NSPS, which is supposed to give Defense a more flexible civil service system.
A coalition of unions, including the American Federation of Government Employees, led by John Gage , has said it will file a lawsuit mid-month to block the Pentagon's blueprint for reordering labor-management relations and giving management greater control over what issues come to the bargaining table.
The unions hope to prevail in part because a federal judge has blocked the start of new workplace rules at the Department of Homeland Security that would reduce the clout of unions there. The judge was particularly troubled that Homeland Security had set up a regulatory scheme that would allow the department to override or nullify contracts, saying that binding contracts are at the heart of collective bargaining rights.
The Pentagon's plan includes a similar provision that would allow the department to override union contracts. Articles in existing collective bargaining agreements "are unenforceable" if they are contrary to the NSPS regulation or Defense directives, known as "implementing issuances," according to the NSPS regulation.
Mary E. Lacey, the program executive for NSPS, said the Pentagon will limit the power to override collective bargaining agreements by giving it only to the most senior officials in the department, such as the secretary, deputy secretary and heads of the military services.
Lacey said that "every contract will have to be looked at, and there will be provisions in some of the existing contracts that will be nullified by this new regulation," which is scheduled to take effect before year's end.
Even though the judge in the Homeland Security case faulted the Bush administration for insisting that officials can abandon union contracts, Pentagon and OPM officials who worked on the Pentagon plan veer away from any comparisons by stressing that Defense operates under a different law from Homeland Security.
"As far as the sanctity of contracts, it is a federal environment and not the private sector, and federal contracts come under different precepts," George Nesterczuk , OPM's adviser on the NSPS, contended. "The fact that agencies have needs that sometimes permit them to pierce provisions of contracts is kind of an accepted practice in the federal sector."
Union lawyers contend that the Bush administration is reaching too far in its effort to revamp labor-management relations. In addition to the issue of voiding provisions in contracts, unions are concerned about Pentagon efforts to reduce the scope of bargaining by removing the requirement for negotiations over the impact of personnel deployments, assignment of work and use of technology. Unions also question the need for the department to create a new bureaucracy -- an internal labor board -- to handle disputes that currently go before an independent agency.
Gordon R. England , acting deputy defense secretary, said the Pentagon has tried to bridge differences with the unions. "I believe we have met the spirit and intent of what the Congress wanted us to do," England
