Pentagon rethinks civilian personnel rules



The Defense Department is re-evaluating several of the most controversial features in its proposal to rewrite personnel rules affecting 746,000 civilian workers, officials testified before House and Senate committees.

One proposal that now appears unlikely to be included in the final rules would have allowed managers to forgo written performance plans for the employees they supervise. Defense officials also told lawmakers they will review a proposal to make it more difficult for the Merit Systems Protection Board to reduce disciplinary actions for poor conduct or performance. And they said they would reassess the composition of a proposed new internal department board to handle labor disputes.

All those areas have been cited by lawmakers, good government groups and others as areas in which Defense went too far in its attempts to craft more flexible personnel rules to better meet its national security mission.

Officials from the department and unions, which represent about 60 percent of Pentagon employees, were to begin formal talks on April 18 on the draft rules Defense issued in February. Navy Secretary Gordon England, who has been heading the development and rollout of the National Security Personnel System (NSPS), said the final rules will be fleshed out with more details and revised based on those discussions, comments received during an earlier public review phase and subsequent input from lawmakers.

"DoD is absolutely committed to developing NSPS in a fair, transparent and open manner," England said April 14 in a hearing before the Senate Armed Services Committee.

Still, Defense is likely to face an uphill battle. Unions are challenging the proposed rules in court, arguing that Defense violated the spirit and letter of the 2003 law that authorized the creation of the new system by severely limiting which workplace decisions are subject to collective bargaining. Managers no longer would need to bargain with unions before changing an employee's work assignment, detailing an employee to another location, introducing new technologies or making other departmentwide changes that affect the mission of the department.

Sens. Carl Levin, D-Mich., and Susan Collins, R-Maine, both asked England to pinpoint whether specific areas, including overtime rules and changes in employees' shifts, would be subject to collective bargaining. England said those details will be discussed with unions during the mandatory 30-day review phase that began April 18. He added that what's eligible for collective bargaining could vary based on the circumstances of the changes being made.

The lack of details worries many observers. Sen. Hillary Clinton, D-N.Y., said it was troubling the proposed regulations don't say how the department will set new pay scales, reclassify employees into new job categories and calculate annual raises. Defense plans to issue those details through directives that won't be subject to the same level of public scrutiny as the regulations.

"I don't know how you can expect employees to have confidence in this system when there's so much left unanswered," Clinton said.

One of the Government Accountability Office's main concerns is the lack of details in the regulations. Comptroller General David Walker said the proposed regulations don't include adequate measures to ensure fairness and guard against abuse, specify how employees will be told what's expected of them or allow for continued involvement by employees in the rollout of the new system.

Defense officials had said having performance expectations in writing could make it more difficult for managers to assign employees different tasks as needs change during the year, but some observers said written performance plans give employees needed direction and help protect managers from complaints of favoritism during the annual appraisal process.

"The first time this system goes into place large scale and there are differences in how pay is made without written appraisals, you will not be able to count the lawsuits," said Del. Eleanor Holmes Norton, D-D.C., during an April 12 hearing before the House Government Reform subcommittee on the federal work force and agency organization.

England said the final rules will include a provision requiring that employees and managers agree in writing on measurable performance objectives at the start of each year.

"This is the heart of the system," he said. "We're working hard to make sure we have a fair and credible system."

England also vowed to review a proposal that would severely limit MSPB's authority to mitigate disciplinary actions. Under the proposed rules, which mirror those approved for the Homeland Security Department, the board could reduce penalties only when they are so extreme as to be "wholly without justification" based on the conduct or performance.

Lawmakers from both parties have joined with the unions in calling the new standard unlawful.

In addition, England said the department would consider seriously complaints from lawmakers and others regarding an internal labor relations board that would be created to hear and resolve labor disputes. The board, which would replace the independent Federal Labor Relations Authority, would be comprised of three members appointed and subject to removal by the Defense secretary.

Critics have said board members should be selected with input from employee representatives and should serve independent of the Defense secretary.

"It's not going to be perceived as an independent board if the secretary is making all of the appointments without input from employees," Collins said.