Labor and Employee Relations in the NSPS Environment Tim Curry Debra Buford Carolyn Howell

2. 2 xxxxxx

3. 3 NSPS Today - What Does Not Change? NSPS does not and cannot change these matters addressed in other parts of law not waived or modified by NSPS.NSPS does not and cannot change these matters addressed in other parts of law not waived or modified by NSPS.

4. 4 NSPS Today � Government-wide rules NSPS employees fall under government-wide rules for: Labor-Management Relations (5 USC chapter 71) Adverse Actions and Appeals (5 USC chapters 75 and 77) Reduction-in-Force (5 USC chapter 35) Same procedures & same standards as GS and FWS employees, but different HR rules! Revised NSPS regulations effective November 25, 2008 are treated like government-wide regulations for collective bargaining purposes NDAA for FY 2008 ensured that NSPS employees continue to operate under government-wide rules for labor management relations, adverse actions and employee appeals and reduction-in-force. NSPS employees have always operated under government-wide rules for labor-management relations, adverse actions and employee appeals. Challenge is applying these government-wide rules for employees covered by different HR rules which offer greater flexibility to local managers. NSPS regulations published in the Federal Register are treated like government-wide regulations for collective bargaining purposes. Unions cannot bargain matters contrary to the content or substance of these regulations but may bargain implementation of these regulations. Management cannot implement portions of regulations which conflict with pre-existing collective bargaining agreements which conflict with the regulations until such time the agreement expires or is subject to renegotiations.NDAA for FY 2008 ensured that NSPS employees continue to operate under government-wide rules for labor management relations, adverse actions and employee appeals and reduction-in-force. NSPS employees have always operated under government-wide rules for labor-management relations, adverse actions and employee appeals. Challenge is applying these government-wide rules for employees covered by different HR rules which offer greater flexibility to local managers. NSPS regulations published in the Federal Register are treated like government-wide regulations for collective bargaining purposes. Unions cannot bargain matters contrary to the content or substance of these regulations but may bargain implementation of these regulations. Management cannot implement portions of regulations which conflict with pre-existing collective bargaining agreements which conflict with the regulations until such time the agreement expires or is subject to renegotiations.

5. 5 Sixteen Bargaining Units Under NSPS All organized AFTER conversion to NSPS 8 Army bargaining units (185 employees) 1 Air Force bargaining unit (42 employees) 1 DLA bargaining unit (26 employees) 1 DISA bargaining unit (3 employees) 5 Navy bargaining units (66 employees) Currently, 322 NSPS employees covered by above units 8 bargaining units are pre-existing units � added NSPS employees to units with GS and FWS employees Most have collective bargaining agreements (CBA) in place In some cases, CBAs conflict with some NSPS policies

6. 6 Union Organizing - Overall 52 new bargaining units formed across DoD since 2006 15 existing bargaining units have added additional positions to unit coverage since 2006 Addition of 5,106 new bargaining unit positions At least 23 union elections or petitions for elections currently pending before the Federal Labor Relations Authority Tim Note: Check with Jeannie on updating these numbers.Tim Note: Check with Jeannie on updating these numbers.

7. 7 Managing Performance Communicate performance expectations Observe and document performance Provide on-going feedback Evaluate performance Address performance that does not meet expectations xxx The first order of business in managing performance is communicating your expectations to your employee. This is absolutely critical. An employee can not meet expectations that he/she is not aware of. As a manager you should observe and document performance � good and bad. Provide employees meaningful, constructive and candid feedback relative to performance. Employees like to hear what they are doing right and in holding employees accountable, they need to know what they are doing wrong. At some point in the performance cycle, performance should evaluated and upon evaluation, if the employee�s performance is not up to par, then the poor performance should be addressed. xxx The first order of business in managing performance is communicating your expectations to your employee. This is absolutely critical. An employee can not meet expectations that he/she is not aware of. As a manager you should observe and document performance � good and bad. Provide employees meaningful, constructive and candid feedback relative to performance. Employees like to hear what they are doing right and in holding employees accountable, they need to know what they are doing wrong. At some point in the performance cycle, performance should evaluated and upon evaluation, if the employee�s performance is not up to par, then the poor performance should be addressed.

8. 8 Origins of Poor Performers Employee came as a poor performer Employee developed a poor attitude or work habits Employee and job are not compatible Employee has health problems Employee�s position or job assignment has changed xxx � Employee has always been a poor performer. The employee has been passed around from one organization to another. If a manager discovers he or she has a poor performer, this situation should be addressed early on. Developed poor attitude or work habits and have gotten away with them. The supervisor just waited until the person found another job, thus indirectly rewarding the behavior. Wrong match - the person and the job are mix matched. This could occur after a reorganization � employees are shifted around. There is a change in the employee�s work habits or performance � health problems may be the source. These problems may not always be obvious. Health problems can complicate dealing with a poor performer. It is critical that management works with the employee relations specialist as soon as health problems are suspected. - Position or job assignment changed- because of reduction in force, realignment, or simple changes in the job assignments. Other problems that may cause poor performance are personal problems such as elder care or financial concerns. Also, there may be misconduct issues that are handled separately but yet have an adverse affect on the performance xxx � Employee has always been a poor performer. The employee has been passed around from one organization to another. If a manager discovers he or she has a poor performer, this situation should be addressed early on. Developed poor attitude or work habits and have gotten away with them. The supervisor just waited until the person found another job, thus indirectly rewarding the behavior. Wrong match - the person and the job are mix matched. This could occur after a reorganization � employees are shifted around. There is a change in the employee�s work habits or performance � health problems may be the source. These problems may not always be obvious. Health problems can complicate dealing with a poor performer. It is critical that management works with the employee relations specialist as soon as health problems are suspected. - Position or job assignment changed- because of reduction in force, realignment, or simple changes in the job assignments. Other problems that may cause poor performance are personal problems such as elder care or financial concerns. Also, there may be misconduct issues that are handled separately but yet have an adverse affect on the performance

9. 9 Performance Interventions Give supervisory feedback Provide remedial training Change work assignment Assign mentor or advisor Provide improvement period Take appropriate action xxxx One of the most difficult tasks a manager or supervisor has is dealing with a poor performer. Most employees perform their jobs in a satisfactory manner, but every now and then you come across those who do not. When the performance is not up to par � options that a supervisor could use include providing feedback, reiterating expectations, providing training, the work assignment may need to be changed, assign an individual that could mentor the employee especially when the individual has strengths in the employee�s weak areas. An improvement period is another option, and although it is optional may prove to be very valuable, and when other interventions have failed take action which could include a letter of counseling, demotion, or a removal. xxxx One of the most difficult tasks a manager or supervisor has is dealing with a poor performer. Most employees perform their jobs in a satisfactory manner, but every now and then you come across those who do not. When the performance is not up to par � options that a supervisor could use include providing feedback, reiterating expectations, providing training, the work assignment may need to be changed, assign an individual that could mentor the employee especially when the individual has strengths in the employee�s weak areas. An improvement period is another option, and although it is optional may prove to be very valuable, and when other interventions have failed take action which could include a letter of counseling, demotion, or a removal.

10. 10 Performance Actions Types of Actions and Penalty Selection Not Capable of Performing (e.g. failure to perform accurate engineering analysis) Remedial Actions: coaching, letter of counseling, training, mentoring, improvement period, reassignment Adverse Actions: change to lower pay band, removal (logically involves movement out of the position) Willful or Negligent Non-performance or Failure to Perform (e.g. failure to work harmoniously with customers) Remedial Actions: verbal warning, letter of counseling, oral admonishment. Adverse Actions: Written reprimand, suspension to removal (full range of penalties open and may be effective) xxx All actions regardless of whether they are based on performance or misconduct � will be taken under chapter 75. You are probably wondering what happened to chapter 43 (where a Performance Improvement Period is required)� the answer to that question is � the NSPS Performance Management Regulations waived Chapter 43. Consequently, for those folks under NSPS, the only avenue available to take performance based actions will be chapter 75. I think of these 2 bullets where as in the 1st bullet the individual �can�t� perform � purely a performance based action�Prior to taking any kind of action in this situation, you should take appropriate remedial action, such as the coaching, counseling, remedial training, and although not required under chapter 75 , you may also put the person on a performance improvement period. (SC 1940.8). Under chapter 43, penalties were restricted to demotion or removal for performance. Whereas, theoretically, it is possible to impose any penalty in the agency table of penalties (TOP) when using Chapter 75. However, it makes no sense to suspend someone who is not capable of performing. If you have tried providing training, coaching and counseling, the logical penalties under Chapter 75 involve movement out of the position. - Change-to-lower pay band - Removal Keep in mind that MSPB will be reviewing these actions, upon appeal, to determine that they are: - For such cause as will promote the efficiency of the service; and - The penalties must be justified in light of the Douglas factors. The MSPB may also mitigate the penalty under chapter 75. Also, what you may find is that medical issues may creep into the mix as well as reasonable accommodation.________________________________________________ The 2nd bullet is �won�t� perform. There is willful or negligent performance. - The typical charge would be �failure to follow instructions� (e.g. you order the employee to do the engineering analysis and the employee just does not do it) - The full range of penalties are open and available for use and promote the efficiency of the service. - This is behaviorally oriented and progressive discipline is in order. How do you take the Adverse Action into Consideration on the NSPS Performance Appraisal (the Rating of Record) You consider the underlying conduct and its impact on the employee�s performance or that of the team. xxx All actions regardless of whether they are based on performance or misconduct � will be taken under chapter 75. You are probably wondering what happened to chapter 43 (where a Performance Improvement Period is required)� the answer to that question is � the NSPS Performance Management Regulations waived Chapter 43. Consequently, for those folks under NSPS, the only avenue available to take performance based actions will be chapter 75. I think of these 2 bullets where as in the 1st bullet the individual �can�t� perform � purely a performance based action�Prior to taking any kind of action in this situation, you should take appropriate remedial action, such as the coaching, counseling, remedial training, and although not required under chapter 75 , you may also put the person on a performance improvement period. (SC 1940.8). Under chapter 43, penalties were restricted to demotion or removal for performance. Whereas, theoretically, it is possible to impose any penalty in the agency table of penalties (TOP) when using Chapter 75. However, it makes no sense to suspend someone who is not capable of performing. If you have tried providing training, coaching and counseling, the logical penalties under Chapter 75 involve movement out of the position. - Change-to-lower pay band - Removal Keep in mind that MSPB will be reviewing these actions, upon appeal, to determine that they are: - For such cause as will promote the efficiency of the service; and - The penalties must be justified in light of the Douglas factors. The MSPB may also mitigate the penalty under chapter 75. Also, what you may find is that medical issues may creep into the mix as well as reasonable accommodation.________________________________________________ The 2nd bullet is �won�t� perform. There is willful or negligent performance. - The typical charge would be �failure to follow instructions� (e.g. you order the employee to do the engineering analysis and the employee just does not do it) - The full range of penalties are open and available for use and promote the efficiency of the service. - This is behaviorally oriented and progressive discipline is in order. How do you take the Adverse Action into Consideration on the NSPS Performance Appraisal (the Rating of Record) You consider the underlying conduct and its impact on the employee�s performance or that of the team.

11. 11 Chapter 75 Requirements Notice of Proposed Action Employee�s answer to notice Right to representation Decision issued Notice of right to appeal xxxx When taking an adverse action under chapter 75, the employee in which the action is taken against is entitled to� 30 days advance written notice A reasonable time to reply, not less than 7 days Right to choose a representative A written decision and Appeal rights. While I have taken you through managing performance to taking a performance based action�.keep in mind that when employees are not engaged they may explore other avenues to air their concerns. These avenues include Office of Special Counsel, Administrative Grievance, The Reconsideration Process for those employees under NSPS and the EEO process. xxxx When taking an adverse action under chapter 75, the employee in which the action is taken against is entitled to� 30 days advance written notice A reasonable time to reply, not less than 7 days Right to choose a representative A written decision and Appeal rights. While I have taken you through managing performance to taking a performance based action�.keep in mind that when employees are not engaged they may explore other avenues to air their concerns. These avenues include Office of Special Counsel, Administrative Grievance, The Reconsideration Process for those employees under NSPS and the EEO process.

12. 12 Adverse Action Issues � Retained Pay Retained pay may be offered for a period of 104 weeks per NSPS regulations (5 CFR 9901.356) Pay retention prevents reduction in base salary when employee�s salary exceeds maximum rate of pay band which they are placed for various reasons such as: Reduction in force or reclassification Priority Placement Program Reassignment At end of 104 weeks, base salary is reduced to no more than maximum rate of pay band If actual salary loss occurs, employees may view a reduction-in-pay as an adverse action and challenge to the Merit Systems Protection Board

13. 13 Adverse Action Issues � Retained Pay Retained pay flexibility should be used with caution Adverse action challenges can be mitigated if: Management makes effort to place employee within their existing pay band; or Management makes effort to place employee in a comparable band with a rate range that can absorb the employee�s salary Retained pay cannot be provided if management wishes to reassign employees to comparable bands for performance or misconduct reasons Performance or misconduct issues should be addressed from those perspectives � address the performance or misconduct using normal procedures, not reassignments

14. 14 Adverse Action Issues Reassignment with involuntary reduction in pay NSPS provides flexibility to reassign employees with involuntary pay reductions for unacceptable performance and/or conduct Reassignments can occur within the same pay band or to a different but �comparable� pay band Adverse action? Yes. Involuntary reductions in pay are adverse actions. Comply with 5 USC chapter 75 and 5 CFR part 752. One unique feature of NSPS concerns the ability to reassign employees with involuntary reductions in pay based on performance and/or conduct. These reductions must be at least 5% and no more than 10% and may not happen more than once during a 12 month period. Chapter 75 states that reductions in pay are adverse actions. Therefore, these �reassignments� must be accomplished using chapter 75 procedures. Employees are entitled to due process and appeal rights.One unique feature of NSPS concerns the ability to reassign employees with involuntary reductions in pay based on performance and/or conduct. These reductions must be at least 5% and no more than 10% and may not happen more than once during a 12 month period. Chapter 75 states that reductions in pay are adverse actions. Therefore, these �reassignments� must be accomplished using chapter 75 procedures. Employees are entitled to due process and appeal rights.

15. 15 Reconsideration Process What is the Reconsideration Process? The exclusive administrative means for non-bargaining unit employees to challenge matters related to performance Overall rating of record Individual job objective ratings It is simply a version of an agency administrative grievance process but deals exclusively with NSPS performance matters It is handled in the same manner as any other agency administrative grievance, but within the requirements outlined in the regulation and implementing issuance xxx The Reconsideration Process is one means of employee redress It limited in scope to the employee�s rating of record and individual job objective ratings. It essentially is an administrative grievance procedure for NSPS performance ratings. We have had a few instances of employee grieving their ratings of record, ______________(Provide info from the Components) xxx The Reconsideration Process is one means of employee redress It limited in scope to the employee�s rating of record and individual job objective ratings. It essentially is an administrative grievance procedure for NSPS performance ratings. We have had a few instances of employee grieving their ratings of record, ______________(Provide info from the Components)

16. 16 Reconsideration Process What it is not�exclusions Share determination (number and value) Payout (base pay/bonus distribution) Interim review Recommended rating Closeout assessment EEO matters These matters may not be challenged in the normal agency administrative grievance process�.statutory processes are another matter�.. xxx The Reconsideration Process is intended to allow employees to challenge two matters in an agency administrative grievance process regarding their ratings�the overall rating and job objective ratings. No other matters may be challenged. The DoD administrative grievance process is not available for ANY matters related to NSPS performance matters, including performance payout determinations. Statutory processes are available to employees such as EEO. xxx The Reconsideration Process is intended to allow employees to challenge two matters in an agency administrative grievance process regarding their ratings�the overall rating and job objective ratings. No other matters may be challenged. The DoD administrative grievance process is not available for ANY matters related to NSPS performance matters, including performance payout determinations. Statutory processes are available to employees such as EEO.

17. 17 Reconsideration Process xxx If employee not happy with the rating-of-record (ROR), may file a written Request for Reconsideration with Pay Pool Mgr w/i 10 calendar days of receipt of ROR (copy: rater & HRO) 2. May request a representative, may include req for a discussion with PPM 3. Must include a copy of rating, state what change is being requested and basis for change 4. Rater shall review a copy of request and address employee�s concerns with PPM 5. PPM shall review request and confer with rater and/or conduct further inquiry, as he/she deems appropriate 6. PPM must render written decision w/i 15 calendar days. This may be extended by 15 days upon notification of employee and further upon mutual agreement. Decision must include brief explanation of basis of the decision (copy: HRO, rater, employee). 7. PPM decision is final unless employee seeks further reconsideration from PRA. If employee is unhappy with PPM decision, or if none is rendered within timeframe (15 days, 30 days if extended, or further upon mutual agreement), employee may submit written request for final review by PRA or PRA designee w/i 5 days of receipt of PPM decision or w/i 5 days of date the decision should date been rendered. 2. PRA shall review request and confer with PPM, or conduct further inquiry as he/she deems appropriate, before rendering a decision w/i 15 calendar days of receipt of written request from employee (15 day extension upon notification to employee, further extension upon mutual agreement) 3. PRA decision is final (copy: HRO, PPM, rater, employee) xxx If employee not happy with the rating-of-record (ROR), may file a written Request for Reconsideration with Pay Pool Mgr w/i 10 calendar days of receipt of ROR (copy: rater & HRO) 2. May request a representative, may include req for a discussion with PPM 3. Must include a copy of rating, state what change is being requested and basis for change 4. Rater shall review a copy of request and address employee�s concerns with PPM 5. PPM shall review request and confer with rater and/or conduct further inquiry, as he/she deems appropriate 6. PPM must render written decision w/i 15 calendar days. This may be extended by 15 days upon notification of employee and further upon mutual agreement. Decision must include brief explanation of basis of the decision (copy: HRO, rater, employee). 7. PPM decision is final unless employee seeks further reconsideration from PRA. If employee is unhappy with PPM decision, or if none is rendered within timeframe (15 days, 30 days if extended, or further upon mutual agreement), employee may submit written request for final review by PRA or PRA designee w/i 5 days of receipt of PPM decision or w/i 5 days of date the decision should date been rendered. 2. PRA shall review request and confer with PPM, or conduct further inquiry as he/she deems appropriate, before rendering a decision w/i 15 calendar days of receipt of written request from employee (15 day extension upon notification to employee, further extension upon mutual agreement) 3. PRA decision is final (copy: HRO, PPM, rater, employee)

18. 18 EEO Considerations NSPS did not change EEO requirements or procedures � government-wide rules apply Under NSPS there is increased discretion in decisions formerly limited by law or regulation Decision makers need to have business based reasons for taking action � in EEO speak, legitimate nondiscriminatory basis for taking the action Xxxx By law, NSPS cannot and does not change EEO requirements or procedures. Government wide rules still apply. NSPS creates some interesting scenarios not commonly found for GS and FWS managers � increased discretion. Under GS and FWS, many decisions by supervisors and managers are rule driven�they essentially are following pre-established procedures from above. NSPS puts many of these decisions at the local level. Not just what the decision is, but how the decision is made. As a result of this increased discretion, managers need be mindful of the impact their decisions may have particularly from an EEO perspective. They should have solid business based reasons for taking an action involving NSPS discretion. In other words, legitimate nondiscriminatory basis for taking the action. Local policies should be established to govern these discretionary matters to ensure consistency and solid business based reasons for taking actions on NSPS matters.Xxxx By law, NSPS cannot and does not change EEO requirements or procedures. Government wide rules still apply. NSPS creates some interesting scenarios not commonly found for GS and FWS managers � increased discretion. Under GS and FWS, many decisions by supervisors and managers are rule driven�they essentially are following pre-established procedures from above. NSPS puts many of these decisions at the local level. Not just what the decision is, but how the decision is made. As a result of this increased discretion, managers need be mindful of the impact their decisions may have particularly from an EEO perspective. They should have solid business based reasons for taking an action involving NSPS discretion. In other words, legitimate nondiscriminatory basis for taking the action. Local policies should be established to govern these discretionary matters to ensure consistency and solid business based reasons for taking actions on NSPS matters.

19. 19 EEO Considerations What are the likely issues? Performance rating Share determination Split between continuing pay and bonus Selection for reassignment Pay increase with reassignment Some (but not all) strategies to address issues Performance rating Ensure rating is consistent with Performance Indicators Share determination and Split between salary and bonus Have consistent, business-based approach to determining number of shares and allocation Communicate the decision to employees as part of publication of pay pool business rules Selection for Reassignment Have legitimate nondiscriminatory reasons for selection May use competition, even though not required Determination of Pay Increase upon Reassignment Use Pay setting guidelines as appropriate Be consistent with similarly situated employees Xxx Insert latest #s from CPMS IRD on NSPS matters being challenged in EEO process. IRD will be providing #s soon. (Tim)Xxx Insert latest #s from CPMS IRD on NSPS matters being challenged in EEO process. IRD will be providing #s soon. (Tim)

20. 20 xxx ADR is any procedure that the disputants agree to use, instead of formal adjudication, to resolve issues in controversy. When disputes arise anytime during the performance management cycle, the use of ADR principles, whether used informally or formally is an effective, time savings way to resolve the conflict. The decision whether or not to use ADR should be based on individual circumstances. Management should consider all relevant information and weigh the pros and cons of various options.xxx ADR is any procedure that the disputants agree to use, instead of formal adjudication, to resolve issues in controversy. When disputes arise anytime during the performance management cycle, the use of ADR principles, whether used informally or formally is an effective, time savings way to resolve the conflict. The decision whether or not to use ADR should be based on individual circumstances. Management should consider all relevant information and weigh the pros and cons of various options.

21. 21 xxx The ADR Spectrum ranges from the least invasive by an outsider (i.e., 3rd party neutral) allowing the disputants to have control over the process and outcome to the most invasive where the disputants have the least control over the process and outcome. Preventive -An attempt to avert conflict by creating a procedure to address possible future disputes. It provides for a mechanism for channeling disputes into problem solving. Negotiated -Where disputants reach their own (without a neutral) resolution to a dispute or matter through interest-based principles of problem solving, i.e., coming to a solution which satisfies all disputants� interests and concerns. Facilitated - mediation falls into this category, Where a neutral assists disputants in reaching a satisfactory resolution to the matter at issue. Neutral has no authority to impose a solution. Fact Finding- Where a neutral, often but not always a technical or subject matter expert, examines or appraises the facts of a particular matter and makes a finding or conclusion. This procedure may be binding or non-binding depending upon the disputants. Advisory -Where a neutral reviews defined aspects of a dispute and gives an opinion as to the likely outcome. 6) Imposed -Where a neutral makes a binding decision regarding the merits of a dispute. Disputes are usually over a possible breach of contract or agreement. The neutral party may be an individual or panel. This type of ADR is closest to traditional dispute resolution. xxx The ADR Spectrum ranges from the least invasive by an outsider (i.e., 3rd party neutral) allowing the disputants to have control over the process and outcome to the most invasive where the disputants have the least control over the process and outcome. Preventive -An attempt to avert conflict by creating a procedure to address possible future disputes. It provides for a mechanism for channeling disputes into problem solving. Negotiated -Where disputants reach their own (without a neutral) resolution to a dispute or matter through interest-based principles of problem solving, i.e., coming to a solution which satisfies all disputants� interests and concerns. Facilitated - mediation falls into this category, Where a neutral assists disputants in reaching a satisfactory resolution to the matter at issue. Neutral has no authority to impose a solution. Fact Finding- Where a neutral, often but not always a technical or subject matter expert, examines or appraises the facts of a particular matter and makes a finding or conclusion. This procedure may be binding or non-binding depending upon the disputants. Advisory -Where a neutral reviews defined aspects of a dispute and gives an opinion as to the likely outcome. 6) Imposed -Where a neutral makes a binding decision regarding the merits of a dispute. Disputes are usually over a possible breach of contract or agreement. The neutral party may be an individual or panel. This type of ADR is closest to traditional dispute resolution.

22. 22 Alternative Dispute Resolution Overall DoD ADR policy by DoD Directive 5145.5 �Each DoD Component shall establish and implement ADR policies and programs.� �All DoD Components shall use ADR techniques as an alternative to litigation or formal administrative proceedings whenever appropriate.� �Every dispute, regardless of subject matter, is a potential candidate for ADR.� NSPS regulation (5 CFR 9901.413) provides that ADR may be pursued at any time during the reconsideration process consistent with the Component�s policies and procedures NSPS regulation does not limit when ADR may be pursued � limits determined by Component policies and procedures (if any) Xxx We�ve received questions concerning the use of ADR during the NSPS reconsideration process. Bottom line is use of ADR is encouraged, but not required. NSPS otherwise does not change Department policy on ADR or place limitations on when it can or cannot be used. If there are any limitations, this would occur only through Component policies. Some Components have indicated a desire to limit ADR to only those matters covered by the reconsideration process. This is a Component policy call. NSPS doesn�t limit ADR use to only those matters covered by the reconsideration process meaning excluded matters could be addressed through ADR unless the Component policy precludes it. Before placing any limits, you should consider the implications of not providing ADR as a forum for employees potentially steering them towards statutory processes, such as EEO.Xxx We�ve received questions concerning the use of ADR during the NSPS reconsideration process. Bottom line is use of ADR is encouraged, but not required. NSPS otherwise does not change Department policy on ADR or place limitations on when it can or cannot be used. If there are any limitations, this would occur only through Component policies. Some Components have indicated a desire to limit ADR to only those matters covered by the reconsideration process. This is a Component policy call. NSPS doesn�t limit ADR use to only those matters covered by the reconsideration process meaning excluded matters could be addressed through ADR unless the Component policy precludes it. Before placing any limits, you should consider the implications of not providing ADR as a forum for employees potentially steering them towards statutory processes, such as EEO.

23. 23 QUESTIONS? NSPS Today Labor Relations Update Managing Performance Adverse Actions Issues Challenges to NSPS Performance Ratings � Reconsideration Process Equal Employment Opportunity Issues Alternative Dispute Resolution xxxxxx

24. 24 Backup Slides xxxxxx

25. 25 Union Activity Union organizing efforts targeting eligible employees not represented by unions Organizing efforts have spiked, particularly in organizations covered by NSPS Organizing efforts across all Components Union organizing efforts have impacted NSPS implementation for some organizations NSPS limited to non-bargaining unit employees Organizing efforts raising questions on employee status � bargaining unit or non-bargaining unit? xxxxxxxx

26. 26 Some Helpful Tips Management Conduct During Union Organizing Activities Remain neutral: Don�t coerce or attempt to influence an employee�s choice Don�t take actions based on union organizing activity (reprisal) Don�t discuss if unions are beneficial or not Don�t promise a benefit to employees based on a desired behavior regarding election outcomes Don�t interfere with an election xxxxxx

27. 27 Some Helpful Tips What can you do? Inform employees of an election Encourage employees to vote Rebut false or misleading statements Enforce all workplace rules Prohibit organizing activity in work areas during work hours Refer employee union-related questions to Human Resources Offices, FLRA, and Union Consult with your Labor Relations advisor in your servicing Human Resources Office xxxxxx

28. 28 System Element Comparison xxx Once the supervisor/manager has gone through the interventions to improve the unacceptable performance of an employee without success the next step is to consider a disciplinary/adverse action. Currently the Human Resources Systems available to address unacceptable performance are chapters 43 or 75. Most of us use chapter 43 when we take actions for unacceptable performance. As I mentioned previously, chapter 43 is waived for those employees under NSPS. Under chapter 43 supervisors/managers have the option of demoting or removing an employee whose performance is unacceptable. Under chapter 75 supervisors/managers may suspend, demote, or remove an employee for unacceptable performance. In comparing the chapter 43 actins to chapter 75, you can see that we are allowed to vary the topes of actions taken for unacceptable performance under chapter 75. Under chapter 43 supervisors/managers have the option of demoting or removing an employee whose performance is unacceptable. Under chapter 75 supervisors/managers may suspend, demote, or remove an employee for unacceptable performance. However, we must be able to show that the action was taken for �such cause as will promote the efficiency of the service.� The burden of proof for actions under chapter 75 is a higher burden of proof than chapter 43. The agency must prove the validity of the action taken under chapter 43 by Substantial evidence and of that taken under chapter 75 by Preponderance of the evidence. Substantial evidence: that degree of relevant evidence which a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. Preponderance of the evidence: that degree of relevant evidence which a reasonable person, considering the records as a whole, would accept as sufficient to find that a contested fact is more likely to be true than not true. xxx Once the supervisor/manager has gone through the interventions to improve the unacceptable performance of an employee without success the next step is to consider a disciplinary/adverse action. Currently the Human Resources Systems available to address unacceptable performance are chapters 43 or 75. Most of us use chapter 43 when we take actions for unacceptable performance. As I mentioned previously, chapter 43 is waived for those employees under NSPS. Under chapter 43 supervisors/managers have the option of demoting or removing an employee whose performance is unacceptable. Under chapter 75 supervisors/managers may suspend, demote, or remove an employee for unacceptable performance. In comparing the chapter 43 actins to chapter 75, you can see that we are allowed to vary the topes of actions taken for unacceptable performance under chapter 75. Under chapter 43 supervisors/managers have the option of demoting or removing an employee whose performance is unacceptable. Under chapter 75 supervisors/managers may suspend, demote, or remove an employee for unacceptable performance. However, we must be able to show that the action was taken for �such cause as will promote the efficiency of the service.� The burden of proof for actions under chapter 75 is a higher burden of proof than chapter 43. The agency must prove the validity of the action taken under chapter 43 by Substantial evidence and of that taken under chapter 75 by Preponderance of the evidence. Substantial evidence: that degree of relevant evidence which a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. Preponderance of the evidence: that degree of relevant evidence which a reasonable person, considering the records as a whole, would accept as sufficient to find that a contested fact is more likely to be true than not true.

29. 29 System Element Comparison xxx As you can see there are distinct differences between these systems. What I would like to highlight here is that under chapter 43 an adverse action can only be based upon the employee�s formal, established and communicated standards. The instances for which a supervisory/manager can base an action is narrow under chapter 43. Whereas under chapter 75 the bases for taking an adverse action relative to an employee�s unacceptable performance is broader. The actions can be based upon ad hoc standards or expectations, as well as established, formal standards. The ad hoc standards should not be based upon standards that are higher than the written standards supervisor must be able to show that s/he communicated what was expected to the employee supervisor must be able to show they assisted the employee in attempting to improve his/her performance, and Make sure the action taken is in compliance with the agency�s regulation and if employee is covered by a CBA, the collective bargaining agreement Ad hoc standards are such things as explicit instructions, work assignments or professional standards established for certain occupations such as physicians A performance improvement period is required under chapter 43 and is not required under chapter 75. However, third parties (arbitrators, judges) place strong emphasis on a supervisor�s effort to communicate what is expected to the employee as well as the supervisor�s effort to assist the employee in improving his or her performance. xxx As you can see there are distinct differences between these systems. What I would like to highlight here is that under chapter 43 an adverse action can only be based upon the employee�s formal, established and communicated standards. The instances for which a supervisory/manager can base an action is narrow under chapter 43. Whereas under chapter 75 the bases for taking an adverse action relative to an employee�s unacceptable performance is broader. The actions can be based upon ad hoc standards or expectations, as well as established, formal standards. The ad hoc standards should not be based upon standards that are higher than the written standards supervisor must be able to show that s/he communicated what was expected to the employee supervisor must be able to show they assisted the employee in attempting to improve his/her performance, and Make sure the action taken is in compliance with the agency�s regulation and if employee is covered by a CBA, the collective bargaining agreement Ad hoc standards are such things as explicit instructions, work assignments or professional standards established for certain occupations such as physicians A performance improvement period is required under chapter 43 and is not required under chapter 75. However, third parties (arbitrators, judges) place strong emphasis on a supervisor�s effort to communicate what is expected to the employee as well as the supervisor�s effort to assist the employee in improving his or her performance.

30. 30 System Element Comparison xxx Under chapter 43 instance of unacceptable performances which may be cited in an adverse action are limited to those which occurred within 1 year of the proposal notice. Under chapter 75, a supervisor/manager is not limited to that 1 year. However, under chapter 75 that adverse action may me be mitigated if the charges are not sustained. Where under chapter 43 an AJ or the Board may sustain or reverse the agency�s action. The action will be not be mitigated. Lisiecki v MSPB. 769 F2d 1558, Fed Cir (1985), 85 FMSR 7038 The actions taken under chapter 75 are subject to the Douglas Factors. That is an AJ or Board will consider the Douglas factors to determine the reasonableness and appropriateness of the penalty. xxx Under chapter 43 instance of unacceptable performances which may be cited in an adverse action are limited to those which occurred within 1 year of the proposal notice. Under chapter 75, a supervisor/manager is not limited to that 1 year. However, under chapter 75 that adverse action may me be mitigated if the charges are not sustained. Where under chapter 43 an AJ or the Board may sustain or reverse the agency�s action. The action will be not be mitigated. Lisiecki v MSPB. 769 F2d 1558, Fed Cir (1985), 85 FMSR 7038 The actions taken under chapter 75 are subject to the Douglas Factors. That is an AJ or Board will consider the Douglas factors to determine the reasonableness and appropriateness of the penalty.

31. 31 Chapter 75 Considerations Special Circumstances Non-disciplinary Adverse Actions Employee Assistance Program Reasonable Accommodation xxx A non-disciplinary adverse action is an adverse action taken for reason(s) other than to correct an employee's delinquency or misconduct. Such as when an employee is physically or mentally unable to perform the duties of the position. These are the actions we previously mentioned as those instances where it is not appropriate to take a progressive disciplinary action because the employee lack the ability to perform the duties and responsibilities. Other special considerations worthy of mentioning are referrals or offers to the Employee Assistance Counselor and Reasonable Accommodation The key is that any medical concerns the employee raises should be reviewed and considered. xxx A non-disciplinary adverse action is an adverse action taken for reason(s) other than to correct an employee's delinquency or misconduct. Such as when an employee is physically or mentally unable to perform the duties of the position. These are the actions we previously mentioned as those instances where it is not appropriate to take a progressive disciplinary action because the employee lack the ability to perform the duties and responsibilities. Other special considerations worthy of mentioning are referrals or offers to the Employee Assistance Counselor and Reasonable Accommodation The key is that any medical concerns the employee raises should be reviewed and considered.

32. 32 Adverse Action Issues Unacceptable rating of record Ineligible for pay increases of any kind Some employees� salary may fall below the minimum rate of his or her assigned pay band Adverse action? No. Employee doesn�t suffer any loss of pay nor has any management action been initiated to reduce pay or place employee in a lower pay band. Employee�s position and level of work remain within the assigned pay band Even so, employee may view this as a constructive reduction in pay or pay band and challenge to MSPB. Level 1 employees are not entitled to performance pay increases; local market supplement increases or rate range adjustments. It is remotely possible that these employees� salary may drop below the minimum rate of the ir assigned pay band if they do not receive any kind of salary increase. Some may challenge this as an adverse action. Department�s position is this does not involve an adverse action: - no reduction in pay; - no reduction in band�employee�s position still and level of work remain within assigned band even if salary has dropped below the minimum level. We have not seen any instances of this happening yet.Level 1 employees are not entitled to performance pay increases; local market supplement increases or rate range adjustments. It is remotely possible that these employees� salary may drop below the minimum rate of the ir assigned pay band if they do not receive any kind of salary increase. Some may challenge this as an adverse action. Department�s position is this does not involve an adverse action: - no reduction in pay; - no reduction in band�employee�s position still and level of work remain within assigned band even if salary has dropped below the minimum level. We have not seen any instances of this happening yet.

33. 33 Reconsideration Process Definitions: Pay Pool Manager (PPM): The individual designated to manage the pay pool, resolve discrepancies, and ensure consistency. (See 5 CFR 9901.103 for full definition) Pay Pool Panel: Management officials, including the PPM, of the organizations or functions represented in the pay pool that assist the PPM in the exercise of his/her responsibilities. (See 5 CFR 9901.103 for full definition) Performance Review Authority (PRA): One or more management officials who manage and oversee the operation of one or more pay pools and ensure procedural and funding consistency among pay pools under its authority. xxxxxxxx

34. 34 Reconsideration Process Challenging the Rating of Record Written request for reconsideration must be submitted to Pay Pool Manager within 10 calendar days of receipt of rating Employee may identify representative Request must include a copy of the rating, state what change is being requested and the basis for the change Employee may request opportunity to personally address the Pay Pool Manager and/or Pay Pool Panel Pay Pool Manager must render written decision within 15 calendar days Determine if request for communication will be accomplished May confer w/rating official and/or conduct further inquiry Decision must include brief explanation of the basis of the decision Decision is final, unless employee seeks further reconsideration from the Performance Review Authority Xxxx Similar to other grievance procedures, the reconsideration process requires challenges to be filed within 10 calendar days of receipt of rating along with certain required information to be included. Because of the time of year when the ratings are provided / communicated to employees (December holiday season), some Components have opted to start the time limits on a common date effectively providing additional time for challenges. Similar to other grievance procedures, the deciding official (pay pool manager in this case) must render a written decision with 15 calendar days. Employee may challenge decision of pay pool manager to the Performance Review Authority.Xxxx Similar to other grievance procedures, the reconsideration process requires challenges to be filed within 10 calendar days of receipt of rating along with certain required information to be included. Because of the time of year when the ratings are provided / communicated to employees (December holiday season), some Components have opted to start the time limits on a common date effectively providing additional time for challenges. Similar to other grievance procedures, the deciding official (pay pool manager in this case) must render a written decision with 15 calendar days. Employee may challenge decision of pay pool manager to the Performance Review Authority.

35. 35 Reconsideration Process Employee�s Dissatisfaction with Decision Employee must submit written request for final review by the PRA or PRA designee within 5 calendar days PRA or PRA designee must render written decision within 15 calendar days May confer w/Pay Pool Manager and/or conduct further inquiry Decision of PRA or PRA designee is final Xxx Like other grievance processes, the reconsideration process has multiple steps to it. If the employee is dissatisfied with the pay pool manager decision, he or she can file a request for review with the PRA within 15 calendar days after receiving the pay pool manager decision or within 15 calendar days after when the pay pool manager should have rendered a decision under the regulation time limits. PRA decision must be made within 15 calendar days. There is no further review beyond the PRA. Nothing precludes the employee from filing a statutory appeal on their rating, such as EEO.Xxx Like other grievance processes, the reconsideration process has multiple steps to it. If the employee is dissatisfied with the pay pool manager decision, he or she can file a request for review with the PRA within 15 calendar days after receiving the pay pool manager decision or within 15 calendar days after when the pay pool manager should have rendered a decision under the regulation time limits. PRA decision must be made within 15 calendar days. There is no further review beyond the PRA. Nothing precludes the employee from filing a statutory appeal on their rating, such as EEO.

36. 36 Grievance Procedures DoD Administrative Grievance System (AGS) DoD 1400.25-M, Subchapter 771 AGS not available for challenging matters related to NSPS ratings or NSPS performance payouts Reconsideration process is the ONLY forum available � intent was for unique procedure to address NSPS performance management matters�.even so�.. Only the rating of record and individual job objective ratings may be challenged through the NSPS reconsideration process No other matters related to NSPS ratings may be challenged through the reconsideration process or the AGS Negotiated Grievance Procedure (NGP) 5 USC 7121 Locally negotiated, broad scope procedure Included if not explicitly excluded Binding arbitration Fifteen bargaining units under NSPS � organizing continues xxx We�ve received various inquiries regarding the availability of the DoD Administrative Grievance procedure for matters not covered by the NSPS reconsideration process. Bottom line is the DoD admin grievance process is not available for challenging any matters related to NSPS ratings or NSPS performance payouts. Intent of Department policy was to provide only one administrative forum for challenges and within this forum limit what may be challenged. This does not preclude challenges in statutory processes such as EEO or challenges in negotiated grievance processes for the 306 NSPS employees in 14 bargaining units. xxx We�ve received various inquiries regarding the availability of the DoD Administrative Grievance procedure for matters not covered by the NSPS reconsideration process. Bottom line is the DoD admin grievance process is not available for challenging any matters related to NSPS ratings or NSPS performance payouts. Intent of Department policy was to provide only one administrative forum for challenges and within this forum limit what may be challenged. This does not preclude challenges in statutory processes such as EEO or challenges in negotiated grievance processes for the 306 NSPS employees in 14 bargaining units.

37. 37 Negotiated Grievance Procedure Grievance remedy or arbitration award generally cannot conflict with NSPS regulation or implementing issuances Regulation & implementing issuances govern disposition of matter grieved if regulation & issuances do not conflict with provisions of an applicable collective bargaining agreement Arbitration award will be found deficient if it conflicts with an enforceable agency or government-wide rule or regulation Bargaining unit employees can potentially challenge NSPS matters not reviewable by administrative procedures available to non-bargaining unit employees � this is no different than any other Department policy outside of NSPS xxx NSPS regulations cannot determine what matters are included or excluded from negotiated grievance procedures. Matters are either excluded by law or excluded through bi-lateral negotiations between union and management. However, grievance decisions and arbitration decisions still must comply with agency regulations. NSPS regulations are gov�t wide regulations. Arbitration awards will be found deficient if they don�t comply with NSPS regulations. For example, an arbitrator cannot order a level 3 employee receive 6 performance shares if the share range is limited to 1 or 2 shares by regulation. Like any other agency policy, bargaining unit employees potentially can challenge NSPS matters through negotiated grievance procedures where non-bargaining unit employees cannot challenge the same matter through the reconsideration process or the agency grievance process. This is not unique to NSPS! xxx NSPS regulations cannot determine what matters are included or excluded from negotiated grievance procedures. Matters are either excluded by law or excluded through bi-lateral negotiations between union and management. However, grievance decisions and arbitration decisions still must comply with agency regulations. NSPS regulations are gov�t wide regulations. Arbitration awards will be found deficient if they don�t comply with NSPS regulations. For example, an arbitrator cannot order a level 3 employee receive 6 performance shares if the share range is limited to 1 or 2 shares by regulation. Like any other agency policy, bargaining unit employees potentially can challenge NSPS matters through negotiated grievance procedures where non-bargaining unit employees cannot challenge the same matter through the reconsideration process or the agency grievance process. This is not unique to NSPS!