DoD National Security Personnel System Dramatically
Reduces the Scope of Bargaining for Employee Representatives
Introduction
The purpose of this paper is to compare the scope of bargaining under the DoD NSPS draft regulations to the current scope of bargaining under Chapter 71,
Title 5, U.S. Code. The paper will show the change in relation to five important workplace issues: overtime policy, shift rotation for employees, safety and health programs, flexitime and alternative work schedules, and deployment away from regular work locations.
Current Law
The basic collective bargaining provisions under the Federal Sector Labor-Management Relations Statute in Title 5 U.S. Code, Chapter 71 are in two areas:
Draft NSPS Regulation
The draft regulation replaces the Title 5, chapter 71 provisions described above with language in NSPS sections 9901.905 and 9901.910, and 9901.917. These provisions essentially gut collective bargaining on most matters important to federal employees.
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Examples
The following are five examples of current DoD labor-management contract provisions which would no longer be negotiable under NSPS.
In general, AFGE locals negotiate overtime policies using two basic premises. First, the union’s interest is in having management assign overtime work to employees who are qualified to perform the work and who normally perform the work. Second, the union seeks a fair and consistent means of assigning or ordering overtime, so it is not used as an arbitrary reward or punishment.
In negotiations, AFGE locals have requested that overtime should be first offered, then ordered. By treating overtime first as an opportunity, workers, based on their personal circumstances, get an opportunity to perform extra work for overtime pay (paid at time and a half) or compensatory time (paid hour per hour).
Commonly, contract language requires overtime to be offered to employees within specific work units, job descriptions or occupational fields to ensure employees performing the work are qualified. Additional contract language allows for the assignment or ordering of overtime if a sufficient number of employees do not volunteer to perform the necessary work. Normally, employee seniority is applied in determining which volunteers will receive the overtime (most senior) and reverse seniority (least senior) in ordering overtime in the absence of volunteers.
This basic contract language over the procedures to be used in assigning overtime provides predictability for both employees and management in dealing with workload surges that force the use of overtime in organizations. Organizations that frequently rely on overtime will usually adopt an overtime scheduling roster.
Current Law
Under 5 USC 7106 (a)(2), Management Rights, the agency has the right to "assign work" which would include overtime assignments. However, the statute requires bargaining over procedures and appropriate arrangements for employees affected by the exercise of a management right (contained at 5 USC 7106 (b)(2) and (3) if requested by the union. Thus, under current law, employee representatives can bargain over important issues dealing with overtime.
NSPS Regulation
Provisions of the NSPS threaten both overtime policies in current contracts as well as the unions’ right to negotiate similar provisions in the future.
Specifically, under 9901.917(d)(1), management could issue a department or even a component level policy or issuance that would negate current contract language dealing with overtime procedures and preclude further negotiations.
In addition, the new NSPS management rights section 9901.910(b) prohibits DoD managers from bargaining over the procedures they will use when exercising their management rights covered under 9901.910(a)(2), which would include assigning overtime..
In industrial DoD settings, shift work is common. Usually there are three shifts: day, evening, and graveyard. Although an evening or graveyard shift may appear unattractive to some, others may prefer such shifts due to increased rates of pay, or because they help the worker handle child or elder care responsibilities with a spouse who works a day shift. Shift work assignment is a frequent subject for bargaining, with the union’s primary focus on providing predictability and stability in workers’ family and personal lives and on equitable sharing of any shift differentials (increased pay) or burdens of work performed outside the normal day shift. Contract language often calls for volunteers first, then the use of seniority when making decisions about shift work, or provides for the equitable rotation of shifts.
Current Law
Under 5 USC 7106(b)(1), management is permitted to negotiate over the numbers, types and grades of employees or positions assigned to a tour of duty. Under 5 USC 7106 (b)(2), management is required to bargain over the procedures it uses to exercise its right to assign work, including assignments to shift rotations.
NSPS Regulation
Provisions of the NSPS threaten both shift work policies in current contracts as well as the unions’ right to negotiate similar provisions in the future.
Specifically, under 9901.917(d)(1), management could issue a department or even component level policy or issuance that would negate current contract language dealing with shift work and preclude further negotiations.
In addition, the new NSPS management rights section 9901.910(a)(2) includes assignment of work, and determining the employees or positions assigned to a work project or tour of duty, making this no longer a permissive subject of bargaining, but a prohibited matter. Section 9901.910(b) goes on to specifically prohibit management from negotiating over the procedures used to exercise such rights, including assignments to shift rotations.
Worker safety and health has always been of paramount importance to unions. Many AFGE locals representing DoD’s blue collar industrial workforce have negotiated, over many years, comprehensive safety programs and often are involved in negotiated workplace safety committees with the employer.
For example, today’s state-of-the-art welding operations in DoD’s industrial operations exist as the result of years of negotiation over workplace safety practices, personal protective equipment, training, technologies and practices, ventilation and moving to safer, newer welding practices. These practices have not only protected employees, but have saved countless DoD dollars in the elimination of on-the-job-injuries, lost time due to accidents, improved work processes and prevented financial losses as the result of destroyed or damaged material and equipment.
Current Law
Safety and health matters are covered by 5 USC 7106(b)(1) which allows, at the election of the agency, bargaining over issues dealing with technology, methods, and means of performing work. They are also covered by 5 USC 7106(b)(3), which requires negotiations over appropriate arrangements for employees adversely affected by the exercise of management’s rights.
NSPS Regulation
Provisions of the NSPS threaten both safety and health policies in current contracts as well as the unions’ right to negotiate similar provisions in the future.
Specifically, under 9901.917(d)(1), management could issue a department or even component level policy or issuance that would negate current contract language dealing with safety and health policies and preclude further negotiations.
In addition, the new NSPS management rights section 9901.910(a)(2) includes technology, methods, and means of performing work, making this no longer a permissive subject of bargaining, but a prohibited matter. Section 9901.(e)(2)(i) limits severely the types of provisions that could be negotiated as "appropriate arrangements."
Under chapter 61 of Title 5, U.S. Code, federal employees may work under flexitime and compressed schedules. Examples of flexitime are 7 am to 4 pm or 9:30 am to 6:30 pm, rather than the traditional 8 am to 5 pm shift. Examples of compressed work schedules are Monday through Thursday for 10 hours per day with Friday off, or Tuesday through Friday for 10 hours per day with Monday off, rather than 8 hours per day Monday through Friday.
Today’s DoD installations often operate daily on a 10 to 12 hour business day meeting customer demands longer and faster than ever before in the department’s history.
Legislation authorizing flexitime and compressed work schedules was enacted to assist employees in handling job, family and community responsibilities. In addition, Congress recognized that such schedules would go a long way toward improving commuting times in crowded metropolitan areas.
Ensuring sufficient choices for employees and protecting the capability to perform the vital work of the department have always been the two guiding principles used in bargaining these arrangements. Currently, work schedule options include core hours, permitted changes by employees, and protections for management in ensuring completion of the agency mission.
Current Law
Flexitime and compressed work schedules are negotiated under provisions of Title 5, chapters 61 and 71. Indeed, 5 USC 6130(a)(1) provides that for employees in a unit represented by a union, establishment and termination of such work schedules, "shall be subject to the provisions of the terms of …a collective bargaining agreement between the agency and the exclusive representative."
NSPS Regulation
Provisions of the NSPS threaten flexitime and compressed work schedules in current contracts as well as the unions’ right to negotiate similar provisions in the future.
Specifically, under 9901.917(d)(1), management could issue a department or even a component level policy or issuance that would negate current contract language dealing with flexitime and compressed work schedules, and preclude further negotiations.
In addition, the new NSPS management rights section 9901.910(b) specifically prohibits management from negotiating over the procedures used to exercise its rights and section 9901.910(e)(2)(i) limits severely the types of provisions that could be negotiated as "appropriate arrangements." Both of these factors could further limit or eliminate bargaining over alternative schedules.
5. Deployment Away From Regular Work Location
Today, DOD reshapes its workforce and makes assignments to locations different from an employee’s normal workplace using reorganizations, transfers of function, details, and in the use of designated positions requiring travel or deployment. In most instances, the union and management deal with these instances on a case-by-case basis. This allows bargaining for the specific circumstance and avoids imposing a one-size-fits-all agreement.
Collective bargaining agreement protections include such things the use of volunteers, then seniority, (as described in other sections of this paper) coupled with requirements that the work be performed by qualified employees. In some cases, there are also provisions calling for advance notice whenever possible.
Current Law
Under section 7106(a)(2)(B) of Title 5, U.S. Code, management has the right to "assign work…and to determine the personnel by which agency operations shall be conducted." However, under 7106(b)(2) and (3), unions can negotiate the procedures management uses in exercising their authority and appropriate arrangements for employees adversely affected by such authority.
NSPS Regulation
Section 9901.910(b) specifically prohibits management from negotiating over the procedures used to exercise its rights to assign work and determine the personnel by which agency operations are conducted. In addition, section 9901.910(e)(2)(i) limits severely the types of provisions that could be negotiated as "appropriate arrangements." This will have the effect of erasing the current rules that the parties have negotiated to preserve the rights of an employee to choose where they work and live, and preclude further negotiations.
Under NSPS, agency officials could move employees arbitrarily or force a prolonged assignment anywhere in the world without regard to any hardship this could cause employees or their families. They could deploy an employee whose family obligations make absence an extreme hardship even if a similarly qualified employee volunteered for the assignment.
In some cases, employees will be forced to make choices between family and job. Management will be able to exercise its right to assign employees and leave any collective bargaining out of the process, including the limited procedural and appropriate arrangement requirements now in current law.
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Impact of Loss of Negotiability over Important Workplace Issues
The consequences of eliminating bargaining for dealing with overtime policies, shift rotation, safety and health programs, flexitime and compressed work schedules, deployment away from regular work locations, and other important workplace issues will likely include worker burnout, increased danger to workers in unsafe situations, and strong feelings of unfairness within work units if assignments and work schedules are not offered or ordered in a fair and consistent manner. Ultimately, the inability of the employees’ representatives to resolve these matters through collective bargaining will create recruitment and retention problems for the Department, as employees find more stable positions in other federal agencies, or with state and local governments.