NATIONAL SECURITY PERSONNEL SYSTEM

1. NATIONAL SECURITY PERSONNEL SYSTEM American Federation of Government Employees, AFL-CIO

2. NSPS Subparts • Subpart A: General Provisions • Subpart B: Classification • Subpart C: Pay and Pay Administration • Subpart D: Performance Management • Subpart E: Staffing and Employment • Subpart F: Reductions in Force • Subpart G: Adverse Actions • Subpart H: Appeals • Subpart I: Labor-Management Relations

3. Subpart A – General Provisions • 9901.102 Effective Dates – • Subpart I: Labor Relations DoD-wide, July 2005 • “Spiral” implementation - Applicable laws and regulations apply until employees covered under NSPS • Employees must be in performance management system if covered by any other subparts except Labor Relations • 9901.106 Continuing collaboration process – • Secretary decides number of union representatives in development of system and at what stage of the process • 9901.108 Program Evaluation – • DoD to develop process for briefing and allowing unions to comment on NSPS progress

4. Subpart B – Classification 9901.211-9901.222 Pay Bands - • DoD to create internal policies for a pay-banding system replacing the GS and FWS systems • System may establish career groups, pay schedules, and pay bands • 9901.231-9901.373 Conversion – • Employees will convert to new system with no reduction in pay, • Regulations do not say employees will be given pro-rated amounts towards steps or career ladder promotions

5. Subpart C – Pay and Pay Administration • 9901.313 National security compensation comparability” • Overall payroll for fiscal years 2004 – 2008 not less than the amount allocated without NSPS • 2009+ DoD balances interests of employees with need for flexibility on organizational changes impacting pay levels–no promise to protect any individual employee from harm because of NSPS

6. Subpart C – Pay and Pay Administration • 9901.311 – 9901.323 Setting and adjusting rate ranges – • Employees assigned to career groups, pay schedules and pay bands (i.e., technical support pay schedule, entry or full performance pay band) • Ranges for the pay bands set by DOD using: mission requirements, labor market conditions, availability of funds, pay adjustments in other Federal agencies, and other factors • Instead of January increases, NSPS employees rated “Acceptable” or better will get a pay increase equal to the percent the minimum rate of their band was increased • If the minimum rate does not increase, there is no increase for employees in that band • Bands can have different increases in the minimum rate, so employees in different bands in the same facility may get different annual increases • Employees rated below “acceptable” will not receive a pay increase.

7. Subpart C – Pay and Pay Administration • 9901.331-9901.334 Local market supplements • Equal Locality pay adjustments replaced by “local market supplements” • Different supplements can be set for different career groups, occupations or pay bands • DoD will decide which jobs should be paid more and which jobs are being paid higher than the local labor market • Employees rated acceptable or higher will get the adjustment made to their band

8. Subpart C – Pay and Pay Administration • 9901.341-9901.342 Performance payouts – • A pay-for-performance system, based on: individual performance, contribution, organizational performance, or a combination • Pay pools used to manage, control, and distribute performance pay • DoD decodes which parts of the organization and which jobs will be combined and what percentage of payroll goes into each pool • The money comes out of the existing payroll costs currently used for such things as within-grade increases, quality step increases, promotions, etc. • Ratings do not translate into number of shares – same rating can equal different number of shares • More shares given out means less per share value (think stock split) • Speed bumps – must attain a higher rating to pass the mid-point • Pool managers and panels can change payouts

9. Subpart C – Pay and Pay Administration • 9901.344 Other performance payouts – • Extraordinary Pay Increases • Organizational Achievement Recognition • 9901.345 Treatment of developmental positions – • Entry and Developmental positions may have standardized assessment or certification points

10. Subpart C – Pay and Pay Administration • 9901.351-9901.355 Setting pay – • Management may set the starting rate of pay anywhere in a band for new hires, promotions, reassignments, etc. • Managers may reduce an employee’s rate of pay up to 10% for unacceptable performance or conduct • 9901.361 Premium Pay – • DoD will issue rules regarding: Overtime pay (excluding pay subject to the FLSA); compensatory time off; Sunday, holiday, and night pay; annual premium pay for standby duty and administratively uncontrollable overtime; criminal investigator availability pay; and hazardous duty differentials

11. Subpart D – Performance Management • 9901.405-406 Setting and communicating performance expectations – • Supervisors will provide performance expectations prior to holding the employee accountable • Managers have flexibility to change expectations whenever necessary and supervisors will inform and involve employees in those changes. • Expectations may include: behavior, goals, objectives, competencies, contributions, work requirements, such as standard operating procedures or instructions, manuals, etc.; a particular work assignment, quality, timeliness, etc. • Final performance expectations at manager discretion

13. Subpart D – Performance Management 9901.407-408 Monitoring performance and providing feedback- • Managers to continue the fine job they are currently doing 9901.409 Rating and rewarding performance – • An employee’s rating of record will be used as a basis for a pay determination, RIF retention standing, and other actions 9901.409 Challenging a rating – • There will be an internal DoD reconsideration process to challenge a performance appraisal rating (not a negotiated grievance process) • Performance payouts cannot be challenged • Supervisors will determine employees’ pay, both by the rating they assign and the number of shares they choose to give • There will be no accountability and no redress for those decisions

14. Subpart E – Staffing and Employment 9901.511 Appointing authorities – • DOD and OPM can create new competitive or excepted appointing authorities that may lead to a noncompetitive appointment to the competitive service 9901.512 Probationary periods – • Probationary periods will be set for employees, not jobs so persons appointed to the same position could serve different probationary periods. • DoD can establish in-service probationary periods for any job, not just supervisory promotions. All promotions could be considered probationary under this section.

15. Subpart F- Workforce Shaping • 9901.601-604 Purpose, scope and definitions – • Broadens RIF categories (not just for lack or funds or work) for realigning, reorganizing, and reshaping workforce; but not including actions taken for performance or conduct • Competing employees ranked for retention based on tenure, veterans' preference, performance rating of record, and length of service. • Performance rating is now of a greater weight than seniority. • Placement rights (“Bump” and “Retreat”) only within band (significantly reduced)

16. Subpart F- Workforce Shaping • 9901.605-608 Competitive area, Competitive group, retention standing – • Additional criteria for establishing competitive areas: line of business, product line, and funding line (now its geographic location and organizational unit) • Competing employees ranked for retention based on tenure, veterans' preference, performance rating of record, length of service, and other factors by Secretary • Performance rating is now of a greater weight than seniority • Placement rights (“Bump” and “Retreat”) only within same competitive group (significantly reduced)

17. Subpart G –Adverse Actions • 9901.703-704 Definition, Coverage and “Mandatory Removal Offenses” (MRO) - • The Secretary has the sole, exclusive, and unreviewable discretion to determine MROs, such offenses may not have a lesser penalty than termination except by the Secretary’s S, E, U discretion • 9901.713-716 Time frames – • Due process includes the right to a notice at least 15 days prior to any proposed adverse action, at least 10 days to reply running concurrently with the notice period, and a notice of decision • Notice period shortened to 5 days if the employer reasonably believes the employee may have committed a crime for which imprisonment may be imposed • The Department may disallow a representative of the employee’s choice by asserting a conflict of interest exists, security may be compromised, or the employee’s chosen representative cannot be released because of cost or their duties cannot be interrupted

18. Subpart H – Appeals 9901.805-808 Purpose, legal standards and precedents – • MSPB is bound by legal standard in Sec. 9901.107(a)(2) • Proposes a preponderance of the evidence as the standard of proof for both conduct and performance actions. • Managers currently only have to show substantial evidence, a lower standard, for performance cases • RIF’s or actions taken under DOD placement programs (including PPP) may not be appealed to the Merit Systems Protection Board (MSPB). • The filing deadline for MSPB appeals is shortened from 30 to 20 days. Neither party to an appeal may unilaterally file for additional time to. • Either party can ask MSPB to limit discovery. Interrogatories, depositions, and other means for gathering facts will be limited. • Only the full MSPB will be able to grant interim relief or stays of actions • An adverse action will be sustained if supported by preponderance of the evidence, unless employee shows by preponderance their was harmful error

19. Subpart I – Labor-Management Relations • 9901.905 Impact on existing agreements – • Any provision of a collective bargaining agreement that is inconsistent with NSPS will be unenforceable once it is covered by NSPS. • The union may appeal Department determinations to the (internal) National Security Labor Relations Board. • The union can request to bargain to bring into conformance parts of its bargaining agreements that are negotiable, but directly affected by the parts alleged to be unenforceable. • The parties will have 60 days after the effective date of coverage to complete bargaining – it they don’t reach agreement, they may use the NSPS negotiation impasse provisions.

20. Subpart I – Labor-Management Relations • 9901.906 Employee rights – • Employees have the right to form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal • Such rights include the right to act for a labor organization, to present views of the labor organization to heads of agencies and other officials, the Congress, or other appropriate authorities, and the right to engage in collective bargaining with respect to conditions of employment

21. Subpart I – Labor-Management Relations • 9901.907 National Security Labor Relations Board (NSLRB) – • NSPS establishes the National Security Labor Relations Board (NSLRB), composed of at least three members (there can be more as long as it is an odd number) unilaterally appointed by the Secretary. • The NSLRB will do many of the things currently done by the FLRA with regards to bargaining issues. The Board will handle bargaining unfair labor practices, negotiability disputes, and bargaining impasses. • The NSLRB will resolve exceptions to arbitration awards and disputes over information requests. • Decisions of the Board are final and binding

22. Subpart I – Labor-Management Relations • 9901.910 Management Rights – • The current management rights section expanded to include subjects that managers had been permitted to bargain – things such as new technology and types of employees to do a job. Under NSPS, managers would be forbidden to bargain those subjects. • Prior to NSPS, DoD managers could take actions within their rights, but bargained over the procedures they would use and arrangements they would make for employees harmed by their actions, such as single parents suddenly deployed away from their children. • Managers will bargain over arrangements only if the effects have foreseeable, substantial, and significant impact and duration on the bargaining unit. • Under NSPS, managers will be forbidden to bargain over the procedures for most actions, but are supposed to consult with the union. • Even if managers unilaterally set their own procedures, they won’t have to abide by them. The regulations give management the right to determine its procedures and deviate from them. • The proposed regulations take away any requirement that managers give the union advance notice of an action; just notice at the time of action

23. Subpart I – Labor-Management Relations 9901.912 Determination of appropriate units for labor organization representation – • The FLRA will continue to determine the appropriateness of any unit. The new rules would bar from coverage, supervisors of military members, employees engaged in all kinds of personnel work, even in a purely clerical capacity, and attorney positions.

24. Subpart I – Labor-Management Relations 9901.914 Representation rights and duties – • The proposed regulations take away the right for employees subject to an examination by an agency official in connection with an investigation to request a union representative if the investigation is conducted by the Offices of the Inspectors General and other independent Department or Component organizations whose mission includes the conduct of criminal investigations, such as the Army Criminal Investigation Division and the Air Force Office of Special Investigations

25. Subpart I – Labor-Management Relations • The union will have the right to be present at any formal discussion between a Department management official(s) and bargaining unit employees only if the purpose of the meeting is to discuss and/or announce new or substantially changed personnel policies, practices, or working conditions.

26. Subpart I – Labor-Management Relations Standards of conduct for union representatives • The proposed regulations say that union representatives are subject to the same standards of conduct as any other employee, even when they are wearing their “union hats.” • The standards of conduct for employees include an expectation of deference to superiors. • A union representative who bangs on the table while loudly insisting, “NO!” is displaying behavior that might not be tolerated in a subordinate. The whole idea of protected activity is threatened here.

27. Subpart I – Labor-Management Relations • Information requests – Under NSPS, DoD managers will not have to disclose information if they believe that adequate alternative means exist for obtaining the information, or that proper discussion, understanding, or negotiation of a particular subject within the scope of collective bargaining is possible without the information. • Unfair labor practices – Under NSPS, it is no longer a ULP to enforce a rule or regulation that is in conflict with an existing collective bargaining agreement – NSPS supersedes the agreements. There will be a 3-month time frame for filing unfair labor practice charges. • Duty to bargain and consult – There will be 90 days to bargain an initial collective bargaining agreement or any successor agreements and 30 days to complete midterm negotiations. If there is no agreement, either party may refer the matter to the Board for resolution. Both Departmental and Component-wide policies, regulations, or similar issuances will bar bargaining.

28. Subpart I – Labor-Management Relations • Multi-unit bargaining – DoD may require that bargaining take place at a level that involves multiple units, for example, a change affecting an entire installation. Any such negotiations will be binding on all parties and will supersede all conflicting provisions of applicable collective bargaining agreements of the labor organization(s) affected by the negotiations. These negotiations will be subject to impasse resolution by the Board. They will not be subject to union ratification.

29. Subpart I – Labor-Management Relations 9901.913 Collective bargaining above the level of recognition – • The Secretary may decide that negotiations will occur at the DoD or Component level, above the level of exclusive recognition, and will determine which labor organization(s) will be involved. • Any agreement reached in these negotiations will be binding on all subordinate bargaining units of the labor organization(s) and DoD and its Components, without regard to levels of recognition and will supersede all conflicting provisions of other collective bargaining agreements. • Except as provided for by the Secretary, there will be no further negotiations with the labor organizations for any purpose, including bargaining at the level of recognition. • The agreement will be subject to impasse resolution by the Board, but not to ratification.

30. Subpart I – Labor-Management Relations • Negotiation impasses – If the Department and exclusive representative are unable to reach an agreement either party may submit the disputed issues to the Board for resolution. The Board may take whatever action is necessary to resolve the impasse. • Grievance procedures - Collective bargaining agreements will provide grievance and arbitration procedures and will be the only authorized procedure for resolving issues under its exclusive coverage. NSPS excludes performance appraisal ratings and mandatory removal offenses from the scope of the grievance procedure. • Exceptions to arbitration awards – Will be filed with the internal Board. Among other reasons, exceptions may be filed based on the arbitrator’s failure to properly consider the Department’s national security mission or to comply with applicable NSPS regulations and DoD issuances. • Official time – These provisions remain essentially the same, although we can expect tougher negotiations and an unsympathetic Board to resolve impasses.