GovernmentExecutive.com

An appeals court has rejected a request from federal employee unions for a full court review of a panel's decision upholding rules that would scale back collective bargaining rights for civilian Defense Department employees.

The coalition of unions that had asked the full U.S. Court of Appeals for the District of Columbia to review a May ruling in favor of the Defense Department will now take the case to the Supreme Court, said Joe Goldberg, lead attorney for the group. The unions represent more than half the civilian employees affected by personnel changes at the Pentagon.

The coalition also will ask that the appeals court delay issuing the mandate that will accompany Friday's decision not to rehear the case, a maneuver that would essentially give the unions more time to work out their next move.

The National Federation of Federal Employees -- one of the unions involved in the case - expressed disappointment in the appeals court's move. "We feel this case meets all the criteria for a rehearing, and choosing not to grant it is a disservice to the 750,000 Defense workers who deserve a fair shake on this all-important matter," said Richard Brown, president of NFFE.

The full appeals court's refusal to review the case lets stand the May ruling by a panel of judges that the Defense Department has the authority to limit employees' collective bargaining rights until 2009, at which time the agency must revert to the labor practices outlined in the 1978 Civil Service Reform Act.

The Defense Department's privilege has come into play as the agency works to implement the National Security Personnel System, which, in addition to the collective bargaining provisions, seeks to tie pay more closely to job performance. Unions have criticized the new system, saying it promotes hiring decisions based on ideology rather than performance.

"[NSPS] is costing taxpayers money needlessly to implement a personnel policy that has nothing to do with performance," said Matt Biggs, legislative director for the International Federation of Professional and Technical Engineers, one of the unions in the coalition.

In addition to legal action, the unions have pushed Congress to block the personnel reforms. The House earlier this month approved a bipartisan spending bill amendment that would protect the collective bargaining and appeal rights of Defense employees.

Language to reform or repeal NSPS also has been included in House and Senate versions of the 2008 Defense authorization bills. In May, the House voted to repeal the existing authority of Defense to move forward on the labor relations portions. So far, the full Senate has failed to move on its version of the authorization bill, which would permit the Pentagon to go forward with personnel reforms, as long as the system is consistent with existing federal labor relations law.

"We're very optimistic that NSPS as we know it right now is going to be fixed," Biggs said. "We have bipartisan support."

Lt. Col. Les' Melnyk, a Defense Department spokesman, said that while it is against agency policy to comment on open legal proceedings, Defense supports the personnel overhaul.

"NSPS is what's needed to reform the civilian workforce for the war on terror," Melnyk said. He said there are "protections under the system" for employees' bargaining rights.

COMMENTS

• I must agree with both Jim and Mike. 1. Ref Jim: As for the monetary issues, may future NSPS defendants please use hard pay data. Show what is to be gained by the average (or better) worker, as it is they whom you wish to buy-in to this new system. Consideration should be given to: a. Please remember that the old system has legislated steps and values in the pay system for career pay progression (upon successful work completion); while the new can change at the drop of a hat; and we all know how often hats are dropped in the political ring. b. Please, do not hold that to the assumption that step increases are automatic. This lie is getting stale. The only way they can be considered automatic is due to the same supervisors who will be doing the evaluations under NSPS. The only fix for that is to change supervisors; either in action or relief from duties. c. Oh, and please, do not deny the existence of cash awards or in-service step increases as rewards for excellent performance. We’ve all seen or had them. 2. In Mike’s favor: Yes, there is much more in the NSPS to fear and abhor than just the PFP. The deployment and enhanced resizing capabilities come swiftly to mind. Perhaps Doogie and Trenchie are avatars of disinformation but I feel they do reflect a certain mentality that is out there; albeit less so every day. Ronald Reagan was called the “Great Communicator”, and we all know Dubya’s prowess in this arena… What amazes me is the excellent judgment he showed in Public Relations (aka Spin Doctors) but the poor judgment in appointments elsewhere (Rummy? Gonzales?). I think such attitudes are directly due to NSPS training and indoctrination. I’ve seen it and was amazed at the push for “team players” as opposed to solid facts describing benefits. It resembled nothing so much as propaganda; light on facts, heavy on shame and guilt for asking questions. Personally if we were all as incompetent as we are painted by the current administration, made obvious by this personnel system design to ship out the old and draft in the new, I think this brainwashing might actually have taken better affect. Tip off Posted August 20, 2007 11:31 AM
• The original intent behind NSPS was to develop a streamlined, more flexible system. The concept in itself was fine but then DOD wrote the implementing instructions and the components and major commands their pay setting and other implementation policies. All these were written by folks mired in the GS system. Just look at a few and you will see how they actually use parallels to GS grades. As the system trickled down through the components, it became more regulated and restrictive and most of the original intended flexibilities were lost. Not only that, instead of one policy, we now have one for each major command. Talk about efficiency! As to pay for performance, dream on and hope to have a supervisor who is an excellent writer. God help you if you are in a profession where writing is not a key element. The training requirements for the implementation of NSPS are immense and the wealth of information so overwhelming that most managers leave with only a cursory understanding. We are continuously holding their hands with even relatively simple issues such as determining the pay band used for a vacancy announcements. The automated performance appraisal tool is cumbersome and perplexing to even key staff members at the Army headquarters - imagine a user guide with 171 pages plus several supplements issued since its original publication. The tool has numerous shortcomings that resulted in higher headquarter's guidance to do hard copies until the system can be revised. The pay for performance system is no more objective than its precursor, TAPES. At the end of the day, folks will figure out that only a very few will make more under NSPS. Most will make less. Despite all the shortcomings, Congress is being told it's a huge success. It is not. But retirement is looking sweeter and sweeter! DA HR Specialist Posted August 20, 2007 5:36 AM
• Jim - Your'e pushing a rope. I don't think Doogie is real nor trenchie and maybe not chris (but dan is, too real). I think they're avatars created by the PM NSPS to sow disinformation and propaganda to confuse the masses. I may be paranoid but that doesn't mean people aren't out to get me. Trenchie's gotta be a fiction or else s/he really has a hard time holding a job. There's been exactly one NSPS pay out cycle that started spring '06 with an abbreviated rating period. Where'd all these positive, glowing, feel-good experiences in multiple organizations with NSPS come from in just that one abbreviated and the current incomplete cycle? In my agency, only personnelists went in 1.1, wouldn't want to experiment on real people. Not much happy talk going around here from that first iteration and at the DOD LR Conf there was a distinct reluctance to share any concrete info on the results of the cycle, just sessions oddly reminiscent of pep rallies. Heard, and this is all anecdotal, that in at least one agency the vast majority of 4's & 5's went to the managerial/supervisory ranks as we cynics might expect. Haven't seen any hard data that would contradict this, certainly not at the DOD or this agency's websites. ENH dredged up the ghost of the late but unlamented PFP past, Merit Pay. Some of us may remember what killed that (I'm implementing either the 5th or 6th appraisal system of my career not counting the annual tinkering with SES). I remember, sorta. The devil as always was in the details but a big part of it was that it set supervisors in competition with their subordinates for their piece of the pie with unhappy results even tho it was confined to 13's and above. From where I stand, I see NSPS repeating that mistake but then if the majority of the workforce was going to be valued employee level 3's did anyone actually think that would apply equally across all bands? Avatars, don't give me argument or the glowing promise of a brighter tomorrow, like Jim has demanded, let's see some hard evidence. As to gaming the system, Game On! Stay with at 3 or less objectives and never more than 1 factor per if you know what's good for you. That's semi-official. Don't be too distracted by the PFP sideshow there's a lot more to NSPS not to like. Mike Posted August 17, 2007 3:24 PM