MARCH 2006 UPDATE American Federation of Government Employees Field Services Department
WHAT IS NSPS? NSPS is a brand new system for: • Job Classification • Pay • Performance Management • Staffing and Employment • Workforce Shaping (aka Reductions in Force) • Adverse Actions • Appeals • Labor Relations
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
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
JUDGE SULLIVAN RULES FOR AFGE!!!!! American Federation of Government Employees Field Services Department
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
AFGE v RumsfeldCONTINUED NDAA § 9902(m) allows DoD/OPM to “establish and from time to time adjust a labor relations system for the Department of Defense to address the unique role that the Department’s civilian workforce plays in supporting the Department’s national security mission;” BUT NDAA § 9902(b) requires that any new system “ensure that employees may organize, bargain collectively. . .,and participate through labor organizations of their own choosing in decisions which affect them;” AND *not waive Chapter 71, “except as otherwise specified;”
AFGE v RumsfeldCONTINUED NDAA § 9902(m) “specifies” only 2 changes from Chapter 71: • national bargaining; • a new “independent third party” to resolve labor-management disputes, AND • Requires that any new system be “collaborative,” issue-based,” and developed in conjunction with employee representatives.
AFGE v RumsfeldCONTINUED So what did DoD do?
AFGE v RumsfeldCONTINUED AFGE asserted in our lawsuit that DoD broke the law in five different ways:
AFGE v RumsfeldCONTINUED 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.
AFGE v RumsfeldCONTINUED 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.
Law required: “meaningful participation” in “development of system” Within 60 days of enactment (11/24/03) Followed by 30 days of meet and confer, & 30 days notice to Congress Instead, DoD wasted a full year in “pre-decisional meetings” with unions, then ignored 90% of union input and “went dark.” DoD/OPM assigned secret working groups to develop regulations, which it then published in Federal Register for 30 days of notice and comment, followed by 30 days of “meet & confer,” then publication of final rule. Unions were shut out at critical times. AFGE v Rumsfeld, Part 1(Development) AFGE claimed that DoD illegally failed to develop the LR system in conjunction with the unions.
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. 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 AFGE v Rumsfeld, Part 1(Development)
Law required: Chapter 71 is not waived NSPS must preserve collective bargaining Employees must be able to participate thru labor unions in decisions which affect them DoD regulations: waive, “modify” and “replace” Chapter 71. Collective bargaining is severely limited Other union rights are narrowed Exactly what Congress said they could not do! AFGE 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.
NDAA Statutory Language 5 U.S.C. §9902(b)(4): Any system established under subsection (a) shall-- … ensure employees may organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions that may affect them, subject to the provisions of this chapter and any exclusion from coverage or limitation on negotiability established pursuant to law. 5 U.S.C. §9902(b)(3)(D)): Any system established under subsection (a) shall--… not waive, modify, or otherwise affect-- … any other provision of this part (as described in subsection (d));…. 5 U.S.C. §9902(d)(2): The other provisions of this part referred to in subsection b(3)(D) are (to the extent not otherwise specified in this title)- … chapters … 71. Challenged Regulations 5 C.F.R. §9901.104(f): The authority for this part is 5 U.S.C. 9902. The provisions in the following chapters of title 5, U.S. Code, and any related regulations, may be waived or modified in exercising the authority in 5 U.S.C. 9902: … (f) Chapter 71, dealing with labor organization (as authorized by 9902(m); 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); (d) (2): Any system established under subsection (a) shall--… not waive, modify, or otherwise affect-- … chapter … 71. Challenged Regulations (ctd). ●5 C.F.R. §9901.902: When a specified category of employees is covered by the labor-management relations system established under this subpart, the provisions of 5 U.S.C. 7101 through 7135 are modified and replaced by the provisions in this subpart with respect to that category, except as otherwise specified in this subpart. Implementing issuances may be prescribed to carry out the provisions of this subpart. AFGE v Rumsfeld, Part 2;Plaintiffs’ Comparison of the Statutory Language and the Challenged Regulation(Labor-Management 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 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 AFGE v Rumsfeld, Part 2 (Labor Relations)
JUDGE: DoD did have the right to make certain changes and “modifications” to Chapter 71, in addition to those two which are specified in the statute. BUT “the new system must ensure that the principles of collective bargaining are not totally eviscerated.” p. 48 ! AFGE 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.
AFGE v Rumsfeld, Part 2 (Labor Relations) AFGE argued that DoD’s regulations totally eliminated the right to meaningful collective bargaining, by providing that • Regulations and “Implementing Issuances” supersede all existing collective bargaining Agreements; • all matters in regulations and implementing issuances are nonnegotiable; • Agency need not show “compelling need” for any agency regulation, no matter how many employees affected.
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.
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)
NSPS erases Ch. 71 “Compelling need” Test Under Chapter 71, agency rules or regulations do not supersede CBA’s or limit bargaining unless • a union represents less than a majority of affected employees and • the agency proves to the FLRA that a “compelling need” exists for the rule or regulation.
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.
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.
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.
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.
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.
Management RightsCONTINUED (a)(2) To hire, assign, and direct employees in the Department; to assign work, make determinations with respect to contracting out, and to determine the personnel by which operations may be conducted; to determine numbers, types, pay schedules, pay bands and/or grades of employees or positions assigned to any organizational subdivision, work project, tour of duty, and the technology, methods, and means of performing work; to assign employees to meet any operational demand; and to take whatever other actions may be necessary to carry out the Department’s mission; and
Management RightsCONTINUED • (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.
Management RightsCONTINUED 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.
AFGE v Rumsfeld, Part 2Management Rights, ctd. AFGE argued that DOD illegally expanded management rights and reduced the scope of bargaining beyond all recognition. Under Chapter 71, mgt has certain rights but must negotiate “procedures” for exercising those rights as well as “appropriate arrangements” for employees adversely affected by the exercise of those rights. 5 USC 7106(b)(2),(b)(3). Bargaining also must be completed before any change.
AFGE v Rumsfeld, Part 2Management Rights, ctd DoD changes these rights in 7 different ways. Its new regulation • 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); • eliminates the requirement that management rights be exercised in accordance with applicable laws, id.; • allows management in all instances to act immediately, before negotiations begin, regardless of any actual emergency or need for speed, § 9901.910(i);
AFGE v Rumsfeld, Part 2Management Rights, ctd • 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).
AFGE v Rumsfeld, Part 2Management 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.
AFGE v Rumsfeld, Part 2Management 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..
AFGE v Rumsfeld, Part 2Management 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
AFGE v Rumsfeld, Part 2Management 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
AFGE v Rumsfeld, Part 2 Labor Relations, CTD AFGE argued that DoD made other illegal and unauthorized changes to Chapter 71: • It expanded the definition of Supervisor. 9901.903 • It limited grievances over violations of laws and rules. Id. • It restricted union representatives’ right to attend formal meetings. 9901.914(a)(2). • It restricted union’s right to information. 9901.914(c)(4). • It restricted speech and conduct of union representatives. 9901.914(a)(4). • It limited unfair labor practice charges, by permitting DoD to violate any CBA by issuing an “implementing issuance.” 9901.916(a)(7). • It limited the right of Non-Appropriated Fund Instrumentalities (“NAFI’S”) to bargain over pay. 9901.305.
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.
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.
AFGE v Rumsfeld, Part 3NS Labor Relations Board DoD tried to illegally replace the independent FLRA and FSIP with a new DoD-appointed internal Board, not an “independent third party” as required by law; this internal DoD Board would have been the only decisionmaker on most ULP’s, negotiability, bargaining disputes and impasses. • AFGE argued that because the board is part of DoD, it is not a “third party.” • AFGE argued that because the Secretary appoints the board, it is not “independent.”
Statutory Language (NDAA): 5 U.S.C. §9902(m)(6): The labor relations system developed or adjusted under this subsection shall provide for independent third party review of decisions, including defining what decisions are reviewable by the third party, what third party would conduct the review, and the standard or standards for that review. Challenged Regulations: 5 C.F.R. §9901.907(b)(1): The National Security Labor Relations Board is composed of at least three members who are appointed by the Secretary for terms of 3 years, …. The Secretary, in his sole and exclusive discretion, may appoint additional members to the Board; in so doing, he or she will make such appointments to ensure that the Board consists of an odd number of members. 5 C.F.R. §9901.907(c): The Secretary, at his or her sole and exclusive discretion, will appoint one member to serve as Chair of the NSLRB. CONTINUED ON NEXT SLIDE AFGE v Rumsfeld, Part 3; Plaintiffs’ Comparison of the Statutory Language and the Challenged Regulation(Labor-Management Review Board )
AFGE v Rumsfeld, Part 3NS 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.”
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.
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 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 AFGE v Rumsfeld, Part 4 Appeals
AFGE v. Rumsfeld, Part 4Appeals-DOD level 2 Review AFGE argued that DoD tried to make the Appeals process more cumbersome and less fair. • It added a second layer of appeals, whereby DoD can “review” decisions of arbitrators or AJ’s, and issue its own “final decision.” 9901.807(g)(2)(ii)(A), (B); .922(f)(2), 923(a). • The innocent employee must appeal again to the full MSPB to overturn DoD’s “decision on review.” 9901.807(f)(2)(ii).
AFGE v. Rumsfeld, Part 4Appeals-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).
AFGE v. Rumsfeld, Part 4Appeals-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.