Legislator says withholding Pentagon personnel plans violates laws

A top Democratic senator said last week that the Defense Department might be violating federal laws by withholding details of the new National Security Personnel System from union representatives.

Last year, Congress granted the Pentagon the right to dramatically overhaul its personnel system. Top Defense officials have indicated that they want to scrap the General Schedule system, implement performance pay, reduce union bargaining powers and streamline the employee appeals process. A conflict has arisen over sharing the details of the personnel plan as union negotiators have unsuccessfully pressed the Defense Department for more information. The Pentagon has indicated, however, that it has held preliminary meetings with union officials to gather employee input.

Defense officials contend that they are legally prohibited from sharing the details of their personnel plan with unions.

"We advised them that providing them with the draft in advance of publication would depart from the intent of the Administrative Procedures Act process, which provides all interested parties an equal opportunity to comment," the NSPS Program Executive Office said in an Oct. 21 statement.

Sen. Edward Kennedy, D-Mass., sharply criticized the Defense Department's refusal to share the plan in a Nov. 19 letter to Defense Secretary Donald Rumsfeld and Office of Personnel Management Director Kay Coles James. Kennedy said the Administrative Procedures Act does not rule out sharing its personnel system plan with unions.

"I also understand that you believe, however, that providing a copy of the proposal before publication would give the union an unfair advantage over others," Kennedy wrote. "Nothing in the Administrative Procedure Act, or any other federal statute, prohibits the department from providing the union with a copy of the proposal in advance."

Kennedy added that the Defense Department's refusal to share the plan violates the legislation that made the NSPS possible-the 2004 National Defense Authorization Act.

"Such action would be contrary to the requirement that Congress included in Section 9902 … stating that management 'shall provide to the [representatives of affected employees] a written description of the proposed system.' "

Defense officials have said that union representatives can comment on the proposal, along with the general public, when it is published in the Federal Register. Kennedy said the public comment period "is not a substitute for the union's right to obtain and review information in its role as the employees' certified bargaining representative."

The Defense Department did not respond to requests for comment on Kennedy's letter. OPM has not completed its response to the senator, according to an agency spokesman. Kennedy's letter asked for a reply from the agencies before Nov. 24.

"It is essential that you proceed with the development of such an important human resources system in the most transparent way possible," Kennedy wrote.