The American Federation of Government Employees said on Wednesday that it plans to seek arbitration or file a lawsuit against the Pentagon's pay-for-performance system.
In a conference call with reporters, AFGE President John Gage said the union was weighing its options for challenging some of the final regulations issued in September by the Defense Department that modified portions of its National Security Personnel System. In particular, the union charged that the new rules limit the scope of collective bargaining.
"Our position has hardened on NSPS," Gage said. "DoD over the past six or seven months has put through regulations that we feel Congress has taken away from them."
The regulations, designed to modify NSPS as mandated by the fiscal 2008 National Defense Authorization Act, aim to bring the system in compliance with federal rules covering subjects such as labor relations, adverse actions and employee appeals. Many unions, including AFGE, criticized the changes, claiming they restricted collective bargaining, largely because provisions governing employees' pay rates were too specific.
Brad Bunn, program executive officer for NSPS, told Government Executive in late September that the Pentagon would halt plans to convert bargaining unit employees to NSPS, leaving that decision up to the department's new leadership. As a result, the labor relations provisions on the new rules would apply only to employees who form a bargaining unit after converting to the system.
Gage said about 300 Defense employees from across the country have formed bargaining units with AFGE since converting to NSPS. Gage said AFGE could help that small group using standard grievance procedures, by taking the issue back to the courts, or both.
"We are not just looking for a legislative fix to NSPS, but actively looking at those units to pursue some litigation strategies that we think look pretty good," Gage said. "Our lawyers are looking at these groups as a vehicle … to jump into litigation probably pretty soon on NSPS."
Beth Moten, legislative director for AFGE, said on Thursday that the union also would lobby the 111th Congress to address the issue through legislation: "We could easily be looking at some serious changes in appropriations or authorization bills, but we don't have a strategy at this point."
Gage said federal unions also would turn to President-elect Barack Obama to address union concerns with NSPS. "We'll lay out how NSPS has been constructed," Gage said, "and that it's not in the best interest of federal employees."
Obama pledged to substantially alter or repeal NSPS in a September letter to AFGE and the International Federation of Professional and Technical Engineers. He noted concern with the system's restrictions on bargaining rights, and what he called a "disconnection between pay and performance despite what employees have been told."
Defense spokesman Les Melnyk said on Thursday that the department will comply with all collective bargaining obligations for the 300 bargaining unit employees under NSPS. "NSPS continues to be integral to the department's human capital strategy of developing the right mix of people and skills across the total force," he said. "NSPS provides us with the necessary tools to reward, recruit, shape and sustain the force DoD needs."