AFGE Local 3529
DOD?S CONCEPTUAL DESTRUCTION OF COLLECTIVE BARGAINING
BACKGROUND ANALYSIS of 2/6/04 DOD Paper ?NSPS Pre-Collaboration Labor Relations Systems Options?
Prepared by AFGE Office of Labor Management Relations
Enid Doggett: (202) 639-6419
The key concept in DOD?s paper, reiterated in several different ways, is that there would be no collective bargaining at all.
Existing collective bargaining agreements would remain in place, on paper, until their expiration. However, nothing in those agreements would be binding on management, and management could unilaterally issue regulations superseding provisions of those contracts.
As contracts expire, they would not be renewed or renegotiated.
There would be a mock collective bargaining process in some circumstances. Management would notify the union of planned changes, and then 60 days later management would implement those changes. During the 60 day period management would, at most, consult with the union over these issues.
There would be no jointly controlled grievance procedure, culminating in decisions by independent third-parties.
The system of non-bargaining would be administered by a management controlled board.
The concepts announced by DOD on February 6 do not meet the standard set by the new law. They do not seek to change the a labor relations system to allow it to better address the unique role that the DOD civilian workforce plays in supporting the Department?s national security mission, they instead constitute a wholesale repudiation of collective bargaining; they do not allow for a collaborative issue-based approach to labor-management relations; they do not provide for independent third party review of decisions; and they do not ensure that employees may bargain collectively, participating through unions of their own choosing in decisions which affect them. All of these are criteria established by law to govern any labor relations program under the National Security Personnel System.
The concepts were presented long after the January 23, 2004, deadline for DOD and the Office of Personnel Management to have presented concrete proposals for improving the DOD labor relations system and, moreover, OPM was actually barred from participating in developing the concepts.
A more detailed, point-by-point, analysis follows:
Pre-Collaboration Labor Relations Options Under the NSPS
On February 6, DOD sent us what they called its concepts for building a labor relations system for DOD civilian employees. Here is an analysis of those concepts.
1. Labor Relations Administration
The proposal does not say how the DLRB members would be appointed, but one can assume that they would all be appointed by the Secretary. No matter how much "independence and autonomy" DOD promises, a body appointed entirely by the Employer is not a neutral third party, for either labor relations or employee appeals.
It is uncertain what is meant by the idea that some members of the DLRB would be "nominated" by the unions. Perhaps the unions would be allowed to submit some suggestions from which the Secretary would select. This would not be a jointly selected panel.
2. Employee Rights
This would be something less than an agency shop, in which all employees must either join the union as regular members, or if they chose not to join, pay an agency fee to the union that is essentially equivalent to Union dues. Under the outline, only those nonmember employees who wanted individual assistance would have to pay a fee. Normally, this would leave the ?free-rider problem,? i.e., the fact that employees benefit from a union-negotiated contract even though they do not financially or otherwise support the union. Under the DOD plan, however, there will be no union contracts, so this problem is less important.
3. Bargaining Units
The proposed standard for bargaining units differs from the current standard, perhaps because no bargaining would occur regardless of the definition of bargaining units. The FLRA standard is that there be a clear and identifiable community of interest among the unit employees and that it promotes effective dealings with and efficiency of the operations of the agency. The requirement that more than 50% of the potential or existing employees participate in representation elections would make it next to impossible for unions to gain recognition. The American system for more than 200 years has left citizens free to decide whether or not to participate in elections, and the decisions of those who vote are binding on the entire effected body. If DOD's proposed standard were applied to general elections, no one would be able to govern at the national level, in any state, or in practically any local jurisdiction. This proposed idea is intended to prevent unions from gaining recognition. The participation of any other body (FLRA) in representation matters, at the option of the DLRB is superfluous. It goes without saying that the body charged with conducting representation elections could seek advice or assistance from anyone it chose.
The outline expands the list of employees who are excluded from bargaining units. Among those added would be employees who supervise military members (though not necessarily civilians), work leaders, clerical workers in human resource offices, employees performing intelligence or counter-intelligence, investigative, and security work that "impacts or affects in a significant way DOD physical, personnel, and information security," attorneys, employees on time limited appointments of 2 years or less, and professional employees and those requiring certifications (unless a majority of the employees vote to be included).
This would remove a substantial number of employees that we have historically been able to represent. It would shrink the scope of coverage far beyond that of the private sector and beyond state and local government systems. We currently represent work leaders, clerical human resources employees, attorneys, and temporary employees or those with term appointments of less than 2 years. The proposal concerning security workers goes beyond the current standard, which removes these workers from unit coverage if their work "directly affects national security." The proposal would remove far more workers from the unit than the current standard does. Similarly, the proposal would remove more employees than the current definition of "professional employee" does. For example, skilled craft workers such as electricians or boiler plant operators often need to be "certified." DOD could exclude positions from bargaining units simply because the positions require "certifications."
We note, however, that since the DOD plan does not allow bargaining on behalf of any employees, the question of inclusions and exclusions from bargaining units is not as important as it would be under a genuine labor-management relations system.
4. Union Dues
The current system allows employees to cancel their dues withholding only once per year. If the employee misses that date, dues withholding continues until the next year. The change will allow employees to quit the union at any time after one year of membership. It will create uncertainty and additional administrative work for the union. It allows management to escape any liability for its own malfeasance or misfeasance regarding union dues. Numerous court decisions have documented management errors in withholding and forwarding employee dues in a timely manner and have held management responsible to make the union whole. DOD seeks to avoid this responsibility by simply declaring itself innocent.
5. Duty to Bargain
Consultation would be required over management-initiated changes in conditions of employment that have a "significant" impact on the unit. NSPS regulation will set what that means. The Department would still notify the union of any changes that are not "significant," though no consultation would be required.
Unions would be able to initiate consultation over any matters that "significantly" affect working conditions, and are not already covered by existing policies or national level consultation.
This outline makes a mockery of the term "collective bargaining." For more than 100 years collective bargaining has been understood as an obligation on the part of employers and unions to negotiate with the intent of reaching agreement. If the parties are unable to reach agreement on their own, they may use the assistance of mediators. After that if agreement still cannot be reached, in the private sector each side is free to try to force acquiescence with its demands through a strike or lockout. Since strikes are illegal in the Federal Sector, for more than 30 years binding resolution by a neutral independent body has served as a substitute. Here DOD evades Congress's requirement that its new personnel system provide for collective bargaining by simply making that term mean what it wants, not how it is understood everywhere else. The suggestion that this would satisfy the law's requirements is condescending and insulting. This blatant power grab would make Al Capone blush.
As weak as the requirement only to consult is, DOD would dilute it further by determining on its own those subjects over which consultation is required. Whenever the Department tired of discussing a particular issue with the union, it could just change the rules and take that issue off the table. The provision for union-initiated consultation similarly allows management to evade this responsibility by issuing a new policy.
There is no impasse resolution process in this proposal because there is not even a pretense that collective bargaining is supposed to culminate in a contract that the parties agree to follow. In fact, under DOD's definition of collective bargaining, there is no such thing as a contract.
6. Scope of Bargaining
Management would retain all the rights contained in Section 7106 of Chapter 71. In addition, management would have the exclusive right to determine cash awards and incentives, determine performance ratings and payouts, set pay, determine pay and allowances and differentials, offer voluntary early retirement or buy-outs, and make Fair Labor Standards Act determinations. The exercise of any management rights is only subject to consultation.
As will be shown below, existing collective bargaining agreements may continue only until their expiration date, and cannot be extended or renegotiated. But, DOD would be able to void any contract provision or past practice that it did not like by simply issuing a new policy to the contrary. This would be contrary to hundreds of years of contract law in the United States.
The management rights clause in Chapter 71 is already among the strongest and most restrictive provisions in any labor relations scheme. DOD proposes to expand it further to retain for itself the power to make decisions in pay matters that are currently subject to negotiation. The current management rights clause requires management to negotiate over the procedures to be used in implementing those rights and over any adverse effects on employees from the exercise of those rights. DOD would eliminate such obligations, substituting only a call for consultation. Unions would be unable to try to mitigate the effects on employees and management would be able to run rampant on its workers.
7. Bargaining Process at the Level of Recognition
In the event of an emergency or for national security reasons, management would be able to implement and consult afterwards.
In all cases the consultation process would last no more than 60 calendar days. If no agreement is reached after that, management may implement the proposed changes. A copy of the resulting policy would be given to the union, along with the reason for final action.
Unions would be able to seek review of procedural complaints with the DLRB. However, no status quo ante remedies may be granted.
In a gambit straight out of Alice in Wonderland, DOD proposes collective bargaining with neither bargaining nor collective bargaining agreements. The outline eliminates the ability to negotiate contracts that are binding and enforceable on both parties. Instead, the employer and the union would consult on what policies the employer would issue, but only if management wishes. The Agency would be free merely to go through the motions of consultation for 60 days and then do whatever it wanted with no recourse for the union.
AFGE is not opposed to delaying bargaining until after implementation when there is a real emergency. However, the DOD outline contains a hole big enough for an Abrams tank since it is free to consider any minor event to concern "national security."
The DLRB would be able to review union charges that the Agency failed to comply with even the limited obligations in the consultation process. However, the only action the Board could take if it determined a violation took place is to tell the Department not to do it again. The cynicism of this proposal is overwhelming.
8. Bargaining Process above the Level of Recognition (National Level Bargaining)
Here again, the Department or Component would be able to have superficial discussions with the union at the national level for 60 days before taking whatever action it wished. Local managers who would have to implement whatever policies are issued are removed completely from the process. While the union would be free to designate local-level representatives to participate, the process is an empty gesture since management retains the power to do whatever it wishes.
9. Union Rights
The current provisions of Chapter 71 require that management invite the union to be represented in any formal discussion with bargaining unit employees. The provision recognizes the union's obligation to protect the institutional interests of the bargaining unit and to see that management neither takes advantage of an employee or group of employees, nor makes any "side deals" with them that are contrary to the working conditions that apply generally. The outline blatantly attempts to escape the current law and case decisions that found certain management actions violated employees' rights. In the past, management may have initiated a meeting for one purpose and it eventually became a formal discussion. Case decisions held that at that moment, management was required to invite the union to participate. The current law includes discussions of any employee complaint as a "formal discussion." So, when an employee would want to discuss a complaint, the union would be entitled to participate to look after the bargaining unit employees' mutual interests. Case decisions held that witness preparation and interviews and meetings held concerning EEO complaints were all "formal discussions." DOD would simply write its own regulations to eliminate these employee protections.
The right of employees to have union representation during investigatory interviews (the so-called Weingarten right ) would continue with several modifications. Management would be able to limit the amount of time it would have to wait for a union to provide a representative. This determination would be based on such matters as the geographic location of the closest steward, security, health, safety, and the integrity of the interview process. Unions would not have the right to be present during investigations by the Department's various criminal and security investigative arms or its Inspector General.
Once more, DOD would severely debilitate an important employee protection. The Department would determine for itself who would be the union's representative by choosing the closest steward, regardless of that individual's skills or qualifications or the union's determination of who could best handle that case. The Department also seeks to overturn a decision by the United States Supreme Court that held that any component of the Agency that would interview an employee in an investigation that could result in that employee's being subject to discipline, including criminal investigative organizations or the Inspector General, must afford the employee the right to union representation. Again, DOD arrogantly seeks to rewrite any decision it does not like.
The Freedom of Information Act procedures will be used for union requests for information.
For 70 years it has been recognized that unions are entitled to information maintained by management when it is necessary to support collective bargaining. A large body of case law has developed in both the private sector and the federal sector regarding what information is required and the conditions for providing it. The outline would substitute the provisions of the Freedom of Information Act for these labor relations-specific provisions. The FOIA is intended to provide information to the general public about the actions of the government. Only that information that is in the public interest is required to be divulged. Information that is maintained by the Agency regarding employee discipline, or other working conditions in a particular workplace may not rise to that level of interest to the general public, but is of vital concern to the union seeking to represent employees. This proposal is a thinly-veiled attempt to curtail the information DOD would have to provide to the union.
The union would have the right not to represent any bargaining unit member who is not a member of the union, if that employe does not pay the required fee. If a fee is received, the union must fairly and competently represent the member.
As discussed above, this would apply only to individual cases and not to representing the unit as a whole. As discussed, below, the outline eliminates provisions for a negotiated grievance procedure, so employees would be free to use their own representatives in the DOD complaint process. As such, the outline is no different from the current situation in which unions are free to decline to represent nonmembers in statutory appeals. However, the outline would increase the standard of union representation that must be provided over what has existed for 70 years.
10. Official Time
For more than 40 years the Federal sector labor relations program has allowed union officials to perform representational duties on official time, or time paid for by the government, in recognition of the union's obligation to represent union members and nonmembers alike, and the inability to impose representational fees on nonmembers. The system provided that the parties would determine the uses of official time and the procedures for obtaining it through negotiations. The outline would reserve these decisions "solely and exclusively" to the employer. The result will be a weaker union, unable to properly represent the interests for the bargaining unit.
11. All Inclusive Complaints Review
DOD substitutes a management-dominated complaint review process for processes that had been negotiated by the parties. Instead of final decisions being issued by neutral, independent reviewers, the final decision will be issued by the management-controlled DLRB. The outline would recognize the imperial power of DOD over its employees.
Local union and management complaints that previously had been the subject of negotiated grievance procedures or unfair labor practice charges would be appealable only to the DLRB . Complaints would have to be filed within 15 days of the event or the date the charging party became aware of the event.
The outline does not explain how the complaint process would work. However, the proposal gives the union no rights that would need enforcement and any decisions would be rendered by the management-dominated DLRB. It provides only a pretense of fairness and due process.
Alleged violations of the local application of agency policy are reviewable by the appropriate management official as determined by the Component or by an appropriate union official in the case of a management initiated complaint. The complaint process lasts no more than 30 days, including time to file the complaint and make decisions. Decisions are final and binding unless mediation is invoked by either party. DLRB may do a limited substantive review of the original complaint decision.
Instead of final decisions by neutral parties such as arbitrators or FLRA administrative law judges, management will make interim decisions on union complaints and the union will make interim decisions on management complaints. This is akin to the interim responses to grievances prior to arbitration. They are not "decisions" as that term is understood. DOD proposes that if the union complains that management violated its own policies, management can simply respond, "No," and that will be the final word. The role of mediation and the "limited" review by DLRB are not made clear in the outline. However, the management-controlled DLRB is still not a credible adjudicator.
Currently unfair labor practice charges must be filed within 6 months of the date of the alleged violation. Here the entire complaint and adjudication process is limited to 30 days. The result will be rushed, arbitrary decisions that do not protect the interests of employees represented by the union.
National level union or management complaints alleging procedural violations of the labor relations system are appealable to the DLRB. Complaints would have to be filed within 15 days of the event or the date the charging party became aware of the event.
This severely limits the time to file such allegations from the current 6 months for filing ULP charges. However the outline provides such limited rights and protections to the union that the complaint process for enforcing those rights is practically irrelevant.
12. Miscellaneous Issues
For more than 100 years labor and management negotiated agreements to set working conditions that were binding and enforceable by the parties. The outline would eliminate that entirely. Existing contracts would have a date-certain on which they would expire and no longer govern the parties. Currently, a contract that is in effect takes precedence over Agency regulations that are issued during its term. The outline reverses this long-standing principle. All management needs to do to evade any provision of a contract during the time it is still in force is issue a new policy to the contrary at the DOD or component level.
The new NSPS labor relations system will not employ any provisions of 5 USC Chapter 71.
Congress allowed DOD to modify the provisions of Chapter 71 to meet its special national security needs. DOD chose to interpret that as a license to throw out the entire labor relations system, regardless of its effects on national security. There is not even a pretense that scrapping Chapter 71 is necessary. The outline proposes doing it just because DOD thinks it can.
It will be a violation of the NSPS labor relations regulations for employees or unions to call or participate in a strike, work stoppage or slowdown, or picketing of an agency in a labor-management dispute if such picketing interferes with agency operations. It will be a violation for a union to condone any such activity by failing to take action to prevent or stop it.
This is the only provision of the current federal sector labor relations system that was continued intact in the outline. We are not surprised.
DRAFT #2 ? PAY FOR PERFORMANCE MESSAGE POINTS
DoD TURNS PAY FOR PERFORMANCE INTO COMPENSATION CANNIBALISM
Will End Cost-of-Living Increases;
We already have real ?Pay for Performance?. Unfortunately, the U.S. Department of Defense (DoD) would give us something very different: Compensation Cannibalism, where an employee?s annual raise could only increase at the expense of his or her fellow employees.
Cost-of-living increases would be gone for 300,000 DoD employees, as would quality increases for superior performance. Instead, all employees within a unit would compete for raises not against an objective performance standard but against each other. This zero-sum game would not improve performance ? rather, it would destroy morale, and undermine the cooperation and teamwork needed to win the war on terrorism. And it would make employment at DoD less attractive than other federal employment or the private sector.
True ?Pay for Performance? already exists in the current compensation system at DoD and throughout the federal government. Beyond the annual comparability increases approved by Congress, employees who perform well are entitled to a step increase in pay. Employees with exceptional performance may receive an additional raise, a quality step increase. Employees with substandard performance are denied any step or grade increase and may be fired or demoted.
The DoD?s National Security Personnel System (NSPS) would replace this proven approach with a bizarre scheme in which annual raises for 300,000 DoD civilian employees would become a zero-sum game, pitting colleagues against each other.
Here is how it would work: Managers would give employees ?performance scores? from 0 to 100 ? although a system to ensure that this scoring process is clear, objective, fair, equitable, credible, transparent and uniform has not been developed.
Each performance score would translate into a range of shares for payout ? your supervisor would decide how many shares to give you within that range.? Employees with scores of between 98 and 100 would receive between 13 and 16 shares. Scores of 95-97 would equal 11 or 12 shares. Scores of 91-94 would result in nine or 10 shares. This continues down the line; employees with scores of 51-65 would receive one or two shares. Anyone with a score of 50 or lower receives zero shares.
Employees are then grouped into ?pay pools? of between 25 and 500 employees. Annual ?payouts? (raises) are determined by taking the total amount of money that would otherwise be available for raises within the pay pool, dividing that amount by the number of shares allocated, and then multiplying the ?share price? by the number of shares each employee receives from his or her manager.
Consider these hypothetical scenarios:
You are one of 50 employees in a pay pool. For simplicity?s sake, let?s say you and your colleagues each earn the same $40,000/year. Your pay pool?s combined salaries thus total $2 million. The total amount of money available for raises ? equal to the amount normally appropriated for cost-of-living increases and quality increases under the current system ? comes to 5 percent, or $100,000.
Your manager considers you an outstanding performer and gives you a performance score of 99, which translates into 15 shares. Now, let?s look at what your raise would be under three different scenarios:
The ?performance scores? of you and your colleagues translate into an average of eight shares per employee, so 400 shares are issued (50 x 8). Each share would be worth $250 ($100,000 divided by 400 shares). Your raise would come to $3,750 (15 shares times $250) or 9.375 percent. By contrast, an employee with eight shares would receive a raise of $2,000 or 5 percent, and an employee with two shares would receive a raise of $500 or 1.25 percent, falling behind inflation.
Your manager believes most of your co-workers performed at a very high level and so the average number of shares granted per employee is 12. This would increase the total number of shares to 600, dropping the share value to $167, and reducing your raise to $2,500 or 6.25 percent.
Your manager believes your co-workers? performance was mediocre at best, so the average number of shares granted per employee is four. This would reduce the total number of shares to 200, increasing the share value to $500 and bringing your raise up to $7,500 ? an 18.75 percent increase!
Under each of the three scenarios described above, your raise would vary widely, not due to your performance, but rather to the performance of your colleagues. This creates a perverse system of incentives and disincentives. You would benefit when your colleagues perform poorly and suffer when they perform well. You could actually receive a financial reward for sabotaging or undermining your colleagues? work, and be financially penalized for working collegially and supporting their efforts!
Suggested sound bites and message points
DoD?s plan would substitute Compensation Cannibalism for the real ?Pay for Performance? system that already exists, as employees? raises could only be maximized at the expense of their colleagues.
DoD?s Compensation Cannibalism plan will sabotage the war on terrorism, by undermining the cooperation and teamwork necessary for success. It will pit employees within the same unit against each other for raises, creating an environment of mistrust and animosity.
Rather than creating a win/win scenario in which performance improves across the board, DoD?s Compensation Cannibalism plan will turn pay into a zero-sum game, in which no one gains unless someone else loses.
We already have real ?Pay for Performance?-- and it works. All Compensation Cannibalism will do is replace it with a perverse system of incentives and disincentives ? one that encourages cutthroat competition between colleagues and discourages cooperation and teamwork.
It may be a dog-eat-dog world out there, but the last place we need a dog-eat-dog workplace is at DoD.
The most successful companies in the world make teamwork and cooperation the cornerstone of their workplace environment. Why is DoD taking the exact opposite approach?
Compensation Cannibalism is the human resources equivalent of Friendly Fire.
Can you imagine what would happen on the battlefield if the environment created by Compensation Cannibalism somehow made its way into the armed services? Instead of soldiers covering each other?s backs, you?d have fraggings and friendly fire.
This is Alice in Wonderland personnel policy ? verdict first, trial later. Each employee is to have raises determined by a new 100-point scoring system ? but a system that it is clear, objective, fair, equitable, credible, transparent, uniform and not subject to abuses or political influence has not been developed. Under NSPS, it does not ever have to be developed!
DoD?s Compensation Cannibalism plan is premised on the myth that the best employees are held back by mediocre colleagues. But it will create an environment in which the best employees can only move ahead financially if they have mediocre colleagues. That logic verges on Orwellian!
At a minimum, our public servants should be entitled to keep up with increases in the cost of living. Yet DoD would destroy this pillar of the federal personnel system and simple decency.
This is ?Survivor?-style personnel policy. Unfortunately, working at DoD is not reality TV, it?s real life. And the real-world consequences of Compensation Cannibalism at the department responsible for protecting Americans from foreign enemies would be very grave indeed.
Now we know what NSPS really stands for: Non-Sensical Pay System.
Rebuttals to DoD?s rhetoric
DoD Rhetoric: You?re making this up, trying to scare people. It is nowhere in any documents about NSPS.
The on-the-ground reality: The devil is in the details. This administration is very clever at trying to disguise its most radical and controversial initiatives and this is a textbook case. So let?s look at the fine print. There is clear and explicit language that the ?Best Practices? initiative of demonstration projects utilizing alternative personnel systems ?will be the foundation upon which NSPS is built.? A careful review of these demonstration projects makes clear that they have already replaced Pay for Performance with Compensation Cannibalism and that is what the new pay system will be under NSPS.
DoD Rhetoric: The current system does not work. Only a fraction of the poor performing employees who should be denied their step or grade increases actually suffer this consequence. And too many high performing employees do not receive the extra quality step increase that is their due. Only our plan will create true pay for performance.
The on-the-ground reality: First, we do not accept the premise of this statement. If you have real data proving your point, reveal it to the public. Second, even if the current system wasn?t being implemented properly, the solution is obvious: overcome the barriers and make it work, don?t blow it up and replace it with a bizarre system that will make matters worse.
DoD Rhetoric: Under NSPS, for the first time, the best performing DoD employees will be able to get the kind of raises their performance merits. And underperforming employees will get the message in their pocketbook that they need to improve or get out. Both changes will dramatically improve the quality of work at DoD.
The on-the-ground reality: First, there is no system in place to ensure that scoring truly reflects performance rather than a manager?s whim or political bias, and that there is uniformity and objectivity. Second, those employees scoring the highest cannot get the raises they are allegedly due unless a significant number of their colleagues get low scores. The goal should be for everyone to perform at the highest level and to be paid commensurate with their performance. Compensation cannibalism actually prevents DoD from achieving this goal.
DoD Rhetoric: Managers are hamstrung from managing effectively under the current system with its rigid, bureaucratic structure, and millions of hoops through which they must jump. They need the flexibility and discretion to be able to reward their best performers and weed out their worst performers. NSPS will give that to them.
The on-the-ground reality: That?s a myth ? under the current Civil Service system managers can indeed manage effectively, reward their best performers and weed out their worst performers. Under Compensation Cannibalism, managers? jobs will be made tougher because the teamwork and cooperation they need will go out the window.