NSPS Hinges On Meet And Confer
By David Hornestay
Congressional committee hearings in April have made it abundantly clear that the potentially revolutionary changes contemplated for the Defense Department's new human resources system will have to withstand substantive bilateral discussions with union representatives and final Congressional review. DOD witnesses were repeatedly challenged, particularly by senators from both parties, about concerns that the regulations and instructions revealed to date fail to comply with employee protections included in the National Security Personnel System legislation in 2003.
While reaffirming their support for greater flexibility and authority for DOD to manage human resources, key senators and representatives questioned details of performance appraisal, appellate review of disciplinary actions, and the scope of collective bargaining. (The Congressional reservations are entirely apart from a lawsuit filed by 10 labor organizations alleging that DOD did not comply with the statutory requirement to include employee representatives in the development of the NSPS labor relations system.)
In testimony on April 12 before a House Government Reform subcommittee, Comptroller General David Walker lauded features of the proposed regulations like pay bands, pay for performance, greater weight to performance in Reduction-in-Force (RIF) decisions, and a pledge to continue collaboration with employee representatives. A meet-and-confer period of at least thirty days has, in fact, begun. However, Walker listed three primary areas of concern:
• DOD needs to define the details of the system, with particular attention to safeguards to insure fairness and prevent abuse. Walker urged the Department to provide for formal and informal appeal mechanisms inside and outside the organization. He noted that DOD had gone beyond the Department of Homeland Security in limiting the role of the Merit Systems Protection Board (MSPB) in disciplinary appeals and allowed less of a role for unions in establishing and conducting the proposed National Security Labor Relations Board.
• The use of core competencies in setting performance expectations is discretionary. Walker said he believes that making them mandatory would promote consistency and clarity in the difficult area of performance management. The Comptroller General also urged the use of at least four rating levels and publication of general information on performance appraisal results while maintaining individual confidentiality.
• DOD should identify a process for continuing involvement of employees in the planning, development, and implementation of NSPS.
While Senate Government Affairs Committee Chair Susan Collins (R-Maine) and Democratic members fulfilled a commitment to follow the regulatory process carefully, DOD officials may have been surprised at the comparable interest shown by members of the Senate Armed Services Committee. Chairman John Warner (R-Va.) and Ranking Member Carl Levin (D-Michigan) were disturbed by the proposed limitation on the MSPB in adverse actions. Freshman Sen. James Talent (R-Mo.) insisted that the regulations let employees know clearly what they will be rated on and that DOD ensure that adequate funds are provided for training and bonuses. Others objected to the labor relations bargaining curtailments.
Secretary of the Navy Gordon England, who heads the DOD implementation team, promised to review the MSPB and labor board provisions and suggested that a written agreement between supervisor and employee on performance objectives will be required. The proposed RIF regulations, which would flip the traditional superiority of longevity to performance, will also apparently get a searching examination in the bilateral discussions.
The Congressional prodding and monitoring should lead to a more meaningful meet-and-confer process than many had contemplated. With the Administration favoring an extension of HR reforms like those of DOD to the entire government, the impact of the results of these discussions could be powerful.