NSPS’ endgame?

AFGE petitions Supreme Court for ruling on pay system, despite impending changes

An NSPS timeline

2003:

Congress enacts the fiscal 2004 National Defense Authorization Act. The law allows the Defense Department to establish a new human resources management system named the National Security Personnel System.

2005:

DOD issues final regulations to establish NSPS. The regulations severely limit the scope of collective bargaining, according to DOD’s labor unions. The American Federation of Government Employees and the United DOD Workers Coalition file a lawsuit in the U.S. District Court for the District of Columbia. They contend that NSPS regulations exceed DOD’s statutory authority.

2006:

In February, District Court Judge Emmet Sullivan nullifies NSPS provisions related to collective bargaining, independent third-party review and adverse actions, signaling a victory for the unions. DOD appeals the ruling.

2007:

In May, the Court of Appeals for the D.C. Circuit reverses the lower court’s ruling. In a two-to-one decision, a panel rules that NSPS’ design and implementation provides appropriate due process and protections for employees. On Aug. 10, the appeals court denies a motion by AFGE for a full court review of the three-judge panel’s
decision.

2008:

On Jan. 7, AFGE petitions the U.S. Supreme Court to hear its case against NSPS.


— Richard W. Walker

When it comes to controversy about the Defense Department’s National Security Personnel System, it’s not over until it’s over.

The American Federation of Government Employees petitioned the U.S. Supreme Court to hear its case against implementing portions of NSPS just when legal skirmishing between the government’s labor unions and DOD management of NSPS appeared ready to subside because of a major legislative overhaul of the controversial new pay system and labor relations rules.

AFGE asked the Supreme Court to hear the case Jan. 7, the last day it could file a petition under a deadline set by the high court. AFGE and the United Department of Defense Workers Coalition had a setback in August 2007 when the U.S. Court of Appeals for the District of Columbia Circuit denied their motion for a full-court review of its earlier decision. That decision overturned a lower court ruling and upheld NSPS provisions that curtail collective bargaining. AFGE officials quickly announced they would ask the Supreme Court to hear the case.

Since then, however, lawmakers incorporated language in Defense Authorization legislation for fiscal 2009 that would change NSPS and restore collective bargaining and other workers’ rights that AFGE and other DOD unions sought during two years of litigation. House and Senate conference committee members approved the changes in NSPS and sent the bill to the White House for President Bush’s signature.

Instead of signing the bill, Bush objected to an unrelated provision in the conference report and issued a pocket veto Dec. 28. The president said the administration is working with members of Congress to fix the provision when lawmakers return this month. That provision pertains to Iraqi assets in the United States. Union officials told Federal Computer Week they expect the issue to be resolved and for revamped NSPS language to become law.

“We’re hopeful that [the issue] will be worked out, and when Congress returns, this bill will be passed pretty swiftly and sent on to the president,” said Matt Biggs, legislative director of the International Federation of Professional and Technical Engineers.

Most union officials, including those at AFGE, endorsed the changes that lawmakers made to NSPS. But in filing its latest action, AFGE is continuing to pursue the case alone. The United DOD Workers Coalition, which comprises more than 30 unions, is not a party to the case. As this issue went to press, FCW was not able to obtain comment from AFGE officials. “Nobody’s talking yet,” a union spokesman said.

An official at the National Federation of Federal Employees, a member of the DOD coalition, speculated that AFGE filed the Supreme Court petition as a precautionary measure.

“I believe they did that because they had a filing deadline,” said Randy Erwin, legislative director at NFFE. “So if some crazy thing happened and [lawmakers] wanted to reopen the authorization bill and it ended up not getting passed and all our NSPS language in the bill went out the door, then they would want to have filed as a precaution so that they could continue their lawsuit.”

Erwin added that if the new NSPS language becomes law, as expected, there would be no need to pursue the case with the Supreme Court. “I can’t speak for AFGE, but from what I’ve heard from our lawyers, the underlying law that [the case] was based on is changed in the Defense Authorization language, so there would be no need to carry on with the lawsuit,” Erwin said. “My guess is that AFGE would not continue” the lawsuit.

In its petition to the Supreme Court, AFGE states that the appeals panel ruling upheld “the labor relations system designed by the Department of Defense to eliminate both meaningful collective bargaining…and objective resolution of labor relations disputes by an independent third party.”

AFGE officials have said in previous interviews with FCW that the odds are against the Supreme Court reviewing the case. Of about 11,000 petitions filed annually requesting the court to consider a case, fewer than 100 are successful.

Meanwhile, DOD has implemented new pay policies for 2008 that reflect the impending changes in NSPS based on the authorization legislation.

The legislation restores collective bargaining and adverse-action appeal rights and removes blue-collar workers from NSPS. However, it leaves intact DOD’s ability to deploy a performance-based personnel system. It also limits performance-based adjustments to 40 percent of a worker’s pay.

Under DOD’s new policies, workers who receive a “fair” rating or better will get 60 percent of the annual raise most federal workers get under the government’s General Schedule pay system.

Under the Consolidated Appropriations Act of 2008, federal civilian workers received a 3.5 percent increase, effective Jan. 6. The remaining 40 percent of the NSPS pay adjustment will be based on performance evaluations by supervisors, as prescribed by the authorization bill. 

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