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October 31, 2007

Pentagon to add 75,000 employees to new personnel system

Source: GovExec.com

By Brittany R. Ballenstedt

The Defense Department is planning to transfer an additional 75,000 nonbargaining unit employees to its new pay-for-performance system, according to an online notice posted Wednesday.

The department has been moving its employees to the National Security Personnel System in waves known as spirals. The upcoming round -- Spiral 2 -- will begin this calendar year, with all 75,000 employees transferred to the system by March 2008, Mary Lacey, program executive officer for NSPS, said on Wednesday.

The installment will be split into two waves -- spirals 2.1 and 2.2. The first will have 9,167 Army employees, 8,842 Navy employees and 148 Defense Commissary Agency employees. Spiral 2.1 employees will make the switch by the end of this year, Lacey said.

Spiral 2.2 will occur between January and March of 2008 and will include 18,139 Army employees, 23,029 Navy employees and 15,628 civilians from 13 other parts of the department. Those other organizations include the Defense Finance and Accounting Service, the Defense Contract Management Agency and the Defense Logistics Agency.

"Organizations have scheduled the date they want to move," Lacey said. "It helps spread the workload and make sure we get all of the training done and all of the classes scheduled properly."

Spiral 2 will bring the total number of employees working under NSPS to 184,159. Spiral 1, which launched in April 2006, has 110,000 employees. Eventually, the system is slated to encompass about 700,000 civilian employees.

Unlike the employees in Spiral 1, those in Spiral 2 will receive the full 2008 governmentwide pay increase, which is expected to be 3.5 percent. The Pentagon announced last month that all Spiral 1 employees will receive half of the 2008 pay increase as an adjustment to their base salary, provided they earn an acceptable performance rating. The other half of the pay boost will be added to performance pay pools and distributed based on quality of work.

Lacey said Spiral 2 employees will receive their first NSPS performance evaluation in September 2008, and the department plans to award performance-based pay increases to the group in 2009. The department has announced plans to allocate the full governmentwide increase to the performance pay pools in 2009.

Meanwhile, the Pentagon has delayed moving unionized workers into the system until Congress completes legislation that could defund or repeal portions of NSPS. In May, an appeals court ruled that the department has the authority to limit the collective bargaining rights of its civilian employees through November 2009.

But Lacey said conversion of bargaining unit employees to NSPS is still far off and is largely dependent on the outcome of the pending legislation. The House and Senate versions of the fiscal 2008 Defense authorization bill, which is in conference negotiations, include provisions that would repeal the Pentagon's authority to limit collective bargaining. In August, the House approved a bipartisan spending bill amendment that would block funding for the labor relations aspects of NSPS.

"DoD may not be implementing NSPS for workers who are currently represented by unions, but they may be implementing for those that are eligible to join unions," said Richard Brown, president of the National Federation of Federal Employees. "Two rank-and-file DoD workers who do the same exact job but in different places could have two completely different personnel systems. That makes no sense at all."

October 19, 2007

The Hatch Act Meets the Digital Age

The Washington Post

The presidential campaign season is underway, so be careful what you do and say in the federal workplace -- especially in an e-mail.

That was the key warning at a Senate hearing yesterday on the Hatch Act, which prohibits certain political activities in the federal workplace.

Sending or even forwarding an e-mail on your government computer that advocates the election or defeat of a political candidate can put you in violation of the law and possibly get you fired, federal officials said.

The Hatch Act, passed in 1939, restricts the political activities of federal employees, giving them a shield to ward off pressure from their supervisors or political bosses. Yesterday's hearing examined the law, how it is enforced and whether it may be too rigid in the age of the Internet.

Federal employees still cannot engage in political activity while on duty, in a government office, using a government vehicle or wearing an official uniform. They cannot run for office in a partisan election. They also cannot use their official authority to interfere with an election, and they cannot solicit or receive political contributions.

In 1993, Congress eased some of the restrictions to permit federal employees to take an active role in political campaigns. The changes have allowed federal employees outside of office hours to manage political campaigns, serve as delegates to political conventions, organize fundraisers and distribute brochures for a political party on Election Day outside polling places.

The 1993 amendments, however, were put in place before the Internet, e-mail and YouTube videos began transforming how Americans communicate and go about their work. It's not uncommon these days for employees to swap e-mails that lampoon politicians and political parties, and, depending on how they are read, suggest how votes should be cast.

"The line between casual 'water-cooler' conversation and political activity that is not permitted may be unclear to many employees," said Sen. Daniel K. Akaka (D-Hawaii), who called yesterday's hearing as chairman of the Senate federal workforce subcommittee.

"Does inviting a few work friends to a campaign rally after work violate the Hatch Act? Does it matter if an employee asks his friends by e-mailing, rather than while chatting in the break room?" Akaka asked.

Officials from the Office of Special Counsel, which investigates and prosecutes Hatch Act allegations, said they make determinations of violations on a case-by-case basis, looking at the content of the message, who sent the e-mail and how many people received the e-mail from the government computer.

James Byrne, deputy special counsel, said the agency has seen an increase in e-mails involving partisan activities since the 2000 election. Because e-mails can be forwarded, they can take on a life that goes far beyond a chat among friends, he suggested.

When it comes to the Hatch Act, he told Akaka, "There is no such animal as the water-cooler exception."

E-mails advocating on behalf of political candidates appear to be a relatively small problem, at least for now.

Chad Bungard, general counsel at the Merit Systems Protection Board, indicated in his testimony that only four e-mail cases related to Hatch Act violations have come before the board. The board usually hears about 8,400 appeals from employees challenging agency decisions each year, but only 36 Hatch Act cases have been heard by the board during the last five years, he said.

Still, federal employee union leaders told Akaka that they think the Office of Special Counsel has chilled the expression of personal opinions on political subjects and candidates by seeking penalties that are too harsh for most transgressions. Too often, federal agencies and managers wield the law to block nonpartisan voter registration drives in federal buildings or to intimidate union officials, the labor leaders said.

"A one-time mistake by an employee with little or no impact on the workplace should not be punished in the same manner as partisan campaigning at the federal work site," said John Gage, president of the American Federation of Government Employees.

Colleen M. Kelley, president of the National Treasury Employees Union, lamented, "What happens in reality is that federal employees are often so confused about what is acceptable and what is not acceptable that they choose not to exercise their rights."

Oct. 15, 2007

Federal Unions Get Some Clout from Congress

CQ WEEKLY – VANTAGE POINT

By Shawn Zeller, CQ Staff

Federal employee unions have had a rough time during the Bush era. But the Democratic Congress this year has given them the opportunity to gain back some ground.

This spring, the House passed a defense authorization bill that would strip the Bush administration of authority to make changes to collective bargaining rules at the Pentagon. This month, when the Senate passed its version of the bill, it included an amendment that would severely restrict the administration’s authority to put government jobs up for competitive bidding with the private sector.

The so-called A-76 outsourcing process — named for a bidding circular from the Office of Management and Budget — has been a central part of the president’s management agenda for the executive branch.

The Senate language was sponsored by Democrats Barbara A. Mikulski of Maryland and Edward M. Kennedy of Massachusetts and approved on a mostly party-line vote. Among its labor-friendly provisions, it would guarantee that federal employees may protest procurement decisions to the Government A-Accountability Office, and it would prohibit procurement officers from using the generous medical and retirement benefits available to union members who work for the Pentagon as a point of cost A-comparison with contractors’ more A-slender benefit outlays.

“If this provision goes into effect, it would kill competitive sourcing,” says Alan Chvotkin, senior vice president of the Professional Services Council, a contractor trade group.

The Merit Systems Protection Board issued a proposed rule last week outlining how it will handle the adjudication of cases arising from the Homeland Security Department's new personnel system.

The rule, published in the Federal Register Friday, seeks to streamline the process by which department employees can appeal disciplinary actions -- such as suspensions, reductions in pay, removals or furloughs -- with the merit board. The new rule is the result of collaboration among the department, MSPB and the Office of Personnel Management.

Under the rule, DHS employees will have 20 days to appeal a disciplinary action, unlike the 30 days permitted to most other federal employees. The rule also allows the removal of employees for national security reasons without opportunity for appeal.

The department also may establish up to a two-year probationary period for certain jobs, as opposed to the current one-year period for most other federal employees. Employees generally have limited appeal rights during a probationary period, making it easier for an agency to fire them.

Additionally, if there is no dispute over the basic facts of a case, the agency or the adjudicating official may file a motion for summary judgment, allowing the judge to issue a decision without conducting a hearing. In contrast, most other federal employees hold a guaranteed right to a hearing with no option for summary judgment.

Previously, the merit board could modify a DHS employee's punishment if it found the penalty unreasonable. But the board's new rule will allow a mitigation standard to take effect, preventing the board from changing an employee's penalty "unless it is so disproportionate to the basis for the action as to be wholly without justification."

Federal labor unions challenged the mitigation standard as part of a broader court case against aspects of personnel reform at DHS. But the U.S. Court of Appeals for the D.C. Circuit reversed a lower court ruling and upheld the standard, arguing that the mitigation provision's legality was not ripe for judicial review.

The National Treasury Employees Union said Wednesday that the mitigation standard and other changes will make it much more difficult for DHS employees to challenge actions taken against them. "NTEU will monitor the implementation of the new mitigation standard closely and, if warranted, renew its challenge at the appropriate time," President Colleen Kelley said.

Larry Orluskie, a spokesman for DHS, said Wednesday that the changes will have a minimal effect on employees. "For 99.9 percent of DHS employees, this means absolutely nothing because most are never going to have to worry about it," he said. "They're all good workers."

Nonbargaining unit employees at DHS will be covered by the new rule on Nov. 5, Orluskie said. The department will extend the rules to bargaining unit employees as collective bargaining agreements come under renegotiation.

"There has been significant collaboration with the unions," Orluskie said. "We've been working closely with the unions on adverse actions and appeals, and as we put out our own management directive, there will be decisions we've worked out in collaboration with the unions."

Comments on the proposed rule can be submitted through Nov. 5, and can be e-mailed to mspb@mspb.gov, faxed to (202) 653-7130, or mailed to:

Office of Clerk of the Board
U.S. Merit Systems Protection Board
1615 M St. NW
Washington, D.C. 20419

The Department of Defense's new personnel system, which is being gradually adopted through its civilian ranks, may face considerable change given recent votes in the U.S. Senate and House on the 2008 Defense funding bill.

The National Security Personnel System, or NSPS, which currently applies to some 1,200 workers at Redstone Arsenal, is in process of replacing the long-standing general services step system.

The DOD adopted the plan in 2005, saying it was necessary to revamp the system to reward better performers, ensure competitiveness for quality workers and improve flexibility of work in wartime. The system currently applies to about 77,000 DOD employees, but the larger implementation for some 700,000 workers, has been delayed by a court fight.

The NSPS has been opposed by government workers unions, which have argued the new system eliminates collective bargaining rights. A coalition of 10 federal workers unions filed a lawsuit to block the system's implementation and prevailed in federal court in February.

The government was victorious in appeal to the D.C. Circuit Court of Appeals, which overturned the lower court and agreed the DOD had the authority to implement the system.

Enter Congress, which as part of the 2008 Defense spending bills, included provisions on the NSPS. The House version fully restores collective bargaining rights, said Beth Moten, a Washington, D.C.-based representative of the American Federation of Government Employees, the union that represents some 8,000 workers at Redstone.

Moten said the House and Senate versions differ and that the House version goes further in restoring the collective bargaining rights the union contends have been eliminated.

"The House version language pulled the system back substantially," Moten said. "The Senate's version is narrower. We prefer the House version."

The differences in the two bills will be resolved in a House-Senate conference committee, and Moten said the union will be pushing very hard for the House version's language to be in the final bill. The Senate version retains section K of the NSPS, which gives managers flexibility for appointments, transfers, promotions and other personnel matters.

Moten said the conference committee version likely wouldn't be finished until later in November.

The AFGE Local 1858 will hold an NSPS "informational town hall" from 11 a.m. to 1 p.m. today, in 30-minute sessions. All federal employees at Redstone Arsenal are invited to attend the meeting at the Bob Jones Auditorium in the Sparkman Center at Redstone.

WASHINGTON -- Despite previous setbacks in this Congress, efforts to secure collective bargaining rights for Transportation Security Administration screeners are continuing, according to union officials.

The American Federation of Government Employees' legislative representative Charity Wilson told cyberFEDS® recent efforts by the TSA to create an internal board for employee feedback "does not come close to the arbitration rights that are extended to all other federal employees" who perform similar duties.

AFGE and the National Treasury Employees Union continue to rally support for H.R. 3212, which was introduced by House Homeland Security Committee member Rep. Nita Lowey, D-N.Y., in July.

Wilson said the language in that bill is nearly identical to a provision previously included in H.R. 1, which implemented recommendations by the 9/11 Commission. Democrats dropped the provision to get the bill passed.

"The TSA provision was dropped from the conference report because the White House said it would veto the bill if it remained," Wilson said.

As a stand-alone bill, "the new legislation will be a more appropriate context to address the issues directly, get more information out there, and make our case," she said. "We are gathering cosponsors for the legislation and look forward to the issue being taken up for discussion in hearings [this month] before the House Homeland Security Committee."

Lowey has said the TSA and the Department of Homeland Security's claim that employees should not be able to bargain collectively because it inhibits the flexibility it needs to ensure security at American airports creates job dissatisfaction and high attrition among TSA workers.

"This is exactly opposite of what the administration wants to accomplish," she stated. "If this bill becomes law, we can replace the high turnover with professionalism and a career path that our screeners will pursue long term. We have to give respect to our workers, allow them to collectively bargain, and stop treating them as if they were replaceable parts."

Kim Kraynak, an AFGE TSA employee representative, said turnover at TSA is also creating safety issues.

"There is currently a revolving door that leaves dedicated employees at higher risk for injuries because they have more tasks but do not get timely training to get the job done," she said.

NTEU President Colleen Kelley said union officials are working with chapters across the country to take grassroots action to help secure cosponsors for the House bill. Most recently, NTEU worked with TSA employees in Atlanta to gather letters asking the Georgia representatives to sign on.