NSPS "Myths & Facts" Elaborated
Beware of spin:
"MYTH": NSPS does nothing to help with national security.
"FACT": Not true. The mission of DoD is national security, and civilians play a vital role in supporting that mission. NSPS provides the Department the tools necessary to recruit, retain, and manage the civilian workforce to accomplish our critical mission in a more effective and efficient manner. NSPS will also provide flexibilities so we can reduce our reliance on the military to perform jobs that civilians can and should perform, freeing up the military to perform its war fighting duties. NSPS is a mission-driven, performance-based system that motivates, recognizes, and rewards excellence, which will result in an overall improvement to mission effectiveness, and enhanced national security. This is critical in the global war on terrorism.
COMMENT: While it is true that "The mission of DoD is national security, and civilians play a vital role in supporting that mission," it is not clear that "NSPS provides the Department the tools necessary to recruit, retain, and manage the civilian workforce to accomplish our critical mission in a more effective and efficient manner, " that NSPS "will result in an overall improvement to mission effectiveness, and enhanced national security," or that it is "critical in the global war on terrorism." History is repleat with examples, though, of bad policy promoted by fear. It is also not clear what is meant by "flexibilities." Much of NSPS remains to be defined by DoD and DoD component "issuances."
"MYTH": Under NSPS, DoD civilians can be assigned anywhere in the world, even to a war zone, with little or no notice.
"FACT": Currently DoD has the authority to reassign employees, including reassignment to overseas locations, when necessary to support the mission. We do this under today’s system. This authority is unaffected by NSPS. One of the goals of NSPS is to reduce its reliance on military to perform jobs that could be performed by civilians.
COMMENT (from Metal Trades Council website): Half true ... but then what did you expect of DOD? Today, before NSPS- this procedure is negotiable with DOD’s labor representatives. And the unions have negotiated fair assignment procedures into collective bargaining agreements that spell out the rules on these "Temporary Assigned Duties" that allow for qualified volunteers to be utilized to the maximum extent before forcing qualified non volunteers to go (usually in inverse order of "SENIORITY"), advanced travel pay, reasonable accommodations arrangements, a fair procedure for rotation back to the employee’s permanent duty station, hardship exceptions for single parents, etc....you know- common sense procedures from the workers’ perspective...under NSPS, none of this will be negotiable...this "unified force structure" concept is a "backdoor draft" by DOD to convert federal employees into military personnel...
"MYTH": I will lose my benefits under NSPS.
"FACT": NSPS will not affect rules governing retirement benefits or eligibility, health and life insurance, leave, attendance, and other similar benefits.
COMMENT (from Metal Trades Council website): Again, DOD is "spinning" and telling a half truth...Under NSPS the manager will be totally in charge with no real meaningful oversight or appeals from his/her decision on your requests for vacation, sick leave, etc. Forget filing an appeal...it is their way or quit!
"MYTH": NSPS eliminates veterans’ preference for reduction in force (RIF) and hiring.
"FACT": NSPS preserves veterans’ preference. DoD is committed to the principles of veterans’ preference; under NSPS, veterans continue to receive preference for both hiring and RIF.
COMMENT: Retention standing is addressed in section 9901.607, which specifies
Sec. 9901.607 Retention standing.
(a) Retention list. Within each competitive group, the Department will establish a retention list of competing employees in descending order based on the following:
(1) Tenure, ...
(2) Veterans' preference, ...
(3) The rating of record, in accordance with DoD implementing
(4) Creditable civilian and/or uniformed service...
(b) Active armed forces member not on list. The retention list does not include the name of an employee who, on the effective date of the reduction in force, is on active duty in the armed forces with a restoration right under 5 CFR part 353.
Note that no relative weights or order of precedence of these factors is specified. Furthermore, section 9901.602 specifies "In accordance with Sec. 9901.105, DoD will prescribe implementing issuances to carry out the provisions of this subpart." (In other words, it's not defined yet.)
Also, from Section 9901.409(i): "DoD implementing issuances will establish policies and procedures for crediting performance in a reduction in force in accordance with subpart F of this part."
"MYTH": Seniority and veterans’ preference will no longer count in the event of a reduction in force (RIF).
"FACT": Not true. Veterans’ preference eligibles are still retained over employees without veterans’ preference in RIF. Also, seniority continues to be a factor in RIF. However, because NSPS is a performance-based system, the proposed regulations give greater weight to performance in RIF retention by placing performance ahead of length of service. Employees competing for retention under RIF who have the same performance ratings will be retained based on length of service.
COMMENT: (See comments above concerning Retention standing ....)
"MYTH": I will lose my job security and there will be layoffs.
"FACT": No jobs will be eliminated because of NSPS. In fact, under NSPS there may be more opportunities for civilians as military positions are converted to civilian. By easing the administrative burden routinely required by the current system, managers will turn to civilians first when assigning vital tasks.
COMMENT: Appeal rights and processes are sharply curtailed. (subpart H).
"MYTH": I will lose pay under NSPS and I won’t get credit for the time I’ve already spent waiting for my next within grade increase.
"FACT": Employees will not lose pay upon conversion to NSPS. Employees will be converted into NSPS at their current salary. In many cases, employees will receive a salary increase equal to the amount they have earned towards their next within grade increase (this is known as the “WGI buy-in”).
Aggregate pay (for all of DoD) is supposed to remain not less than under the current system through 2008. However, how that pay is distributed among individuals and how it may deviate after 2008 is undefined. Individuals are not supposed to lose pay upon conversion to NSPS, but they could lose pay after that if it is determined that they are not performing at the appropriate level. Note also, from section 9901.373: "(b) When an employee receiving a special rate under 5 U.S.C. 5305 before conversion is converted to an equal rate of pay under the NSPS pay system that consists of a basic rate and a local market supplement, the conversion will not be considered as resulting in a reduction in basic pay for the purpose of applying subpart G of this part." (Basic pay and local market supplements are treated differently. We don't know how pay will be distributed between these two components or whether the local market supplement could be negative. Much remains to be defined by "implementing issuances.") Also from section 9901.373: "(e) The Secretary has discretion to make one-time pay adjustments for GS and prevailing rate employees when they are converted to the NSPS pay system. DoD will issue implementing issuances governing any such pay adjustment, including rules governing employee eligibility, pay computations, and the timing of any such pay adjustment." and from Section 9901.356: "(e) Subject to DoD implementing issuances, DoD may set the rate of basic pay of an employee upon the expiration of a temporary reassignment or promotion, and any resulting reduction in basic pay is not considered an adverse action under subpart G of this part."
"MYTH": There will be no locality pay under NSPS.
"FACT": The proposed NSPS pay system includes a locality-based component of pay called a “local market supplement” that is paid in addition to an employee’s basic pay. The local market supplement will be based on market conditions related to geographical and occupational factors, and may differ from one occupation to another in a given locality area. Employees will be entitled to increases to the local market supplement, unless they are performing at an unacceptable level.
COMMENT: From section 9901.333: "Setting and adjusting local market supplements. (a) Within its sole and exclusive discretion, DoD may, subject to Sec. 9901.105(d)(3), set and adjust local market supplements. In determining the amounts of the supplements, DoD will consider mission requirements, labor market conditions, availability of funds, pay adjustments received by employees of other Federal agencies, allowances and differentials under 5 U.S.C. chapter 59, and any other relevant factors."
"MYTH": NSPS is just a way to freeze the pay of DoD civilians, since we’re no longer entitled to the automatic January pay increase or within-grade increases.
"FACT": The annual January pay increase, as we know it now, will change. The proposed pay rules provide for periodic “rate range” adjustments, to adjust the minimum and/or maximum rate of a pay band. When a minimum rate of a pay band is adjusted upward, employees will receive an equivalent increase. There are no “steps,” similar to the GS system, in a pay banding system. Instead, pay increases and/or performance bonuses are based primarily on your performance rating. Unacceptable performers are not eligible for pay increases under the proposed system.
COMMENT: From section 9901.322: "Setting and adjusting rate ranges. (a) Within its sole and exclusive discretion, DoD may, subject to Sec. 9901.105(d)(2), set and adjust the rate ranges established under Sec. 9901.321. In determining the rate ranges, DoD may consider mission requirements, labor market conditions, availability of funds, pay adjustments received by employees of other Federal agencies, and any other relevant factors. (b) DoD may determine the effective date of newly set or adjusted band rate ranges. (c) DoD may establish different rate ranges and provide different rate range adjustments for different pay bands. (d) DoD may adjust the minimum and maximum rates of a pay band by different percentages."
"MYTH": Under NSPS, funds for salaries and bonuses will no longer be certain.
"FACT": DoD is committed to ensuring civilian compensation is protected. In fact, the law requires that the aggregate amount of money allocated for civilian compensation for organizations under NSPS cannot be less than the amount that would have been allocated under the existing system. Under NSPS, the overall amount of money that would have been used for the annual January pay adjustment, within grade increases, quality step increases, and similar payments, will be used for civilian pay, and those funds will be protected. However, the proposed NSPS pay system will distribute those funds based primarily on performance
COMMENT: The main problem with this is in measuring performance. Historically, discretionary awards have been considerably greater (on a per-person or per-award basis) to Management than to Labor. Under NSPS, management will also have this discretion with our salaries. The aggregate amount (total of all salaries), though, is expected to remain the same or nearly the same (not less). Unless the total pay increases, for one person's reward to increase, others must decrease. No mechanism has been specified to ensure that irrelevant (personal) factors do not bias performance evaluations. Setting goals and measuring results will likely become much more arduous. Challenges to ratings are to be allowed, but the procedure has yet to be defined (sec. 9901.409(g)). Payout determinations will not be subject to reconsideration procedures.
"MYTH": My supervisor will not be prepared and equipped to fairly and objectively rate my performance, and will not be held accountable for exercising his responsibility under NSPS.
"FACT": Supervisors and managers will have an important role in determining performance-based pay increases. The flexibilities proposed in the NSPS regulations bring with them an increased need for accountability. This includes employee accountability for performance, as well as supervisory and managerial accountability for the proper exercise of the authorities of NSPS. Extensive training will be given to supervisors and managers, both military and civilian. Training will focus on improving skills needed for effective performance management: setting clear expectations; communicating with employees; and linking individual expectations to the goals and objectives of the organization. Supervisors and managers will be held accountable for how effectively they use the tools provided by NSPS. They will also be subject to the pay and performance provisions of the system, and their pay will be affected by how well they perform their duties as supervisors and managers.
COMMENT: If we were painting ships, performance would be easy to measure. Unfortunately, what we do here, in many cases, is not so easily measured. It is expected that there will be considerably more debate over performance evaluations under NSPS than under the current system.
"MYTH": Unions have had no involvement in developing NSPS.
"FACT": The proposed NSPS regulations are the product of a broad-based, collaborative effort across the Department that began in 2004. This included a number of meetings with employee representatives involving extensive and fruitful discussions on potential options for the design of the system. In several areas, the proposed regulations reflect the interests and concerns that were voiced during those consultation sessions. We also held numerous focus groups and town hall meetings, many of which included local union involvement, to gather input and feedback on the system design. Now that we have published our proposed regulations, the next step in this process is to gather comments and recommendations on the proposed regulations, and engage in more discussions and dialogue with employee representatives as called for in the law authorizing NSPS.
COMMENT: Unions are now suing over this. There seems to be disagreement over the meaning of "collaboration."
"MYTH": NSPS will do away with bargaining units and employee unions.
"FACT": Not true. The implementation of the NSPS labor relations system will not eliminate unions or bargaining units. Employees will still be able to be represented by labor organizations and to bargain collectively. The proposed rules enable the Department to act expeditiously in carrying out its mission by limiting the situations that are subject to bargaining, and speeding up the bargaining process.
COMMENT: While it is true that "The implementation of the NSPS labor relations system will not eliminate unions or bargaining units," the power of unions to compel negotiations is sharply curtailed under NSPS. Note the words: "limiting the situations that are subject to bargaining, and speeding up the bargaining process."
"MYTH": Employees will lose their fundamental rights to grieve or appeal unfair decisions or adverse actions.
"FACT": NSPS does not change critical employee rights such as merit systems principles, due process, whistleblower protections, and protection against prohibited discrimination and personnel practices. There will continue to be avenues for employees to seek redress. For bargaining unit employees, negotiated grievance procedures will remain part of the process, and other employees will continue to have access to administrative grievance procedures, as well as formal appeals processes for adverse actions.
COMMENT: Appeal rights and processes are sharply curtailed. (subpart H). From Federal Register entry, p. 7567: "The appeal filing deadline, including the deadline for class appeals, is decreased from 30 days to 20 days." From p. 7565: "This subpart retains an employee's right to representation and a written decision but provides shorter advance notice periods and reply periods than are currently required for appealable adverse actions. Employees are entitled to a minimum of 15 days advance notice and a minimum of 10 days to reply, which run concurrently. However, if there is a reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the Department will provide a minimum 5 days advance notice and opportunity to reply, which will run concurrently." From sec. 9901.103: "Day means a calendar day." From p. 7566: "The authority provides that DoD may reconsider and affirm, remand, modify, or reverse an initial MSPB AJ decision ..."
"MYTH": Under NSPS, there is no process for employees to challenge their performance rating.
"FACT": DoD is developing a process that will allow employees to request reconsideration of their rating to a higher authority. This process will apply to all employees under NSPS. Under current law, employees in the same organization are often subject to different procedures and avenues when challenging performance ratings. This sometimes results in inconsistent decisions. Because of the importance of the performance rating process and its impact on pay, DoD will ensure that every employee has the same opportunity to seek appropriate redress.
COMMENT: From section 9901.409(g): "(g) A rating of record may be challenged by an employee only through a reconsideration procedure as provided in DoD implementing issuances. This procedure will be the sole and exclusive method for all employees to challenge a rating of record. A payout determination will not be subject to reconsideration procedures." Has any one seen this procedure or the "implementing issuances" yet? Who will decide the challenge? What will be the rules of evidence and procedures?
"MYTH": Under NSPS, there is no due process for employees affected by an adverse action.
"FACT": Not true. The proposed regulations preserve due process rights for employees who are subject to an adverse action (e.g., removal, suspension of more than 14 days, reduction in pay or pay band level). In all such cases, employees continue to have the right to notice of proposed action, the right to reply, the right to representation, and the right to appeal that action. The rule changes proposed in the regulations seek to streamline this process so that workplace issues are resolved quickly, while ensuring due process, recognizing the need for workplace accountability, and providing efficient tools for dealing with performance and conduct issues.
COMMENT: Appeal rights and processes are sharply curtailed ("streamline"d). (subpart H). From Federal Register entry, p. 7567: "The appeal filing deadline, including the deadline for class appeals, is decreased from 30 days to 20 days." From p. 7565: "This subpart retains an employee's right to representation and a written decision but provides shorter advance notice periods and reply periods than are currently required for appealable adverse actions. Employees are entitled to a minimum of 15 days advance notice and a minimum of 10 days to reply, which run concurrently. However, if there is a reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, the Department will provide a minimum 5 days advance notice and opportunity to reply, which will run concurrently." From sec. 9901.103: "Day means a calendar day." From p. 7566: "The authority provides that DoD may reconsider and affirm, remand, modify, or reverse an initial MSPB AJ decision ..." Most matters may ultimately be decided by a new National Security Labor Relations Board (NSLRB), which is composed of members appointed by the Secretary of Defense for limited terms. The Secretary may also add members to this board at any time without limit.
"MYTH": The proposed appeal system is not an impartial process.
"FACT": Under NSPS, employees retain the right to appeal to a third party in adverse action cases. The proposed regulations retain Merit Systems Protection Board (MSPB) administrative judges as the initial adjudicators of employee appeals of adverse actions. Although the proposed regulations provide for a Departmental review of those initial administrative judge decisions, employees retain the right to appeal to the full MSPB to review a final Department decision.
COMMENT: From p. 7566: "The authority provides that DoD may reconsider and affirm, remand, modify, or reverse an initial MSPB AJ decision ..." Most matters may ultimately be decided by a new National Security Labor Relations Board (NSLRB), which is composed of members appointed by the Secretary of Defense for limited terms. The Secretary may also add members to this board at any time without limit. Consider also:
Section 9901.807(d)(2): "Neither the MSPB AJ, nor the full MSPB, may reverse the Department action based on the way in which the charge is labeled or the conduct characterized, provided the employee is on notice of the facts sufficient to respond to the factual allegations of the charge." (How does one prepare a proper defense if one can be convicted of something other than what is charged?)
Section 9901.807(k)(6): "An arbitrator, AJ, or the full MSPB may not modify the penalty imposed by the Department [[Page 7594]] unless such penalty is so disproportionate to the basis for the action as to be wholly without justification. In cases of multiple charges, the third party's determination in this regard is based on the justification for the penalty as it relates to the sustained charge(s). When a penalty is mitigated, the maximum justifiable penalty must be applied. The maximum justifiable penalty is the severest penalty that is not so disproportionate to the basis for the action as to be wholly without justification."
Section Sec. 9901.715(f): "The Department may disallow as an employee's representative--"
Section 9901.807(h)(1): "Except as provided in paragraph (h)(2) of this section or as otherwise provided by law, the AJ may require payment by the Department of reasonable attorney fees incurred by an employee if the employee is the prevailing party and the AJ determines that payment by the Department is warranted in the interest of justice. For the purpose of this subpart, such fees are warranted in the interest of justice only when the Department engaged in a prohibited personnel practice or the Department's action was clearly without merit based upon facts known to management when the action was taken."
This page was last updated on March 15, 2005