Proposed Defense HR system suffers setback
Judge halts National Security Personnel System; appeals planned
"The unions have a different opinion than we do. I believe we're right, we'll proceed." 'NSPS' Mary Lacey
The Defense Department's proposed merit-based personnel system lost a battle in court last week.
Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia ruled that several portions of the National Security Personnel System that dealt with labor relations were illegal.
In the 77-page decision, Sullivan ruled that NSPS:
- Fails to ensure that employees can bargain collectively
- Does not meet congressional requirements for an independent third-party review of labor relations decisions
- Fails to provide employees with fair treatment in the appeals process.
The ruling follows a similar one last year on the Homeland Security Department's proposed system, and could affect administration plans to eventually change personnel and pay systems governmentwide.
NSPS is the administration's largest attempt to migrate from the General Schedule pay system established in 1949 to a system that would tie pay to performance.
The plaintiffs in the case, a group of federal unions, were quick to voice their support of Sullivan's decision.
Colleen M. Kelley, president of the National Treasury Employees Union, said she was pleased by the judge's ruling, and that it vindicated 'NTEU's consistent argument that the White House has clearly overstepped its authority in attempting to take away longstanding federal employee rights.'
DOD 'was granted certain latitude to develop a new personnel system, and it still violated the law by overreaching,' said Joe Goldberg, assistant general counsel for the American Federation of Government Employees.
Goldberg said the ruling 'eviscerates the core of NSPS, leaving but a hollow shell of provisions that simply cannot stand on their own.'
Speaking at a conference in Baltimore last week, Gordon England, deputy secretary of Defense, said the department had been expecting this ruling.
'It's the way the system works,' he said. England believes NSPS will be sustained in the appeals process, he said.
'The unions have a different opinion than we do,' said Mary Lacey, NSPS' program executive officer. 'I believe we're right, we'll proceed.'
'More than anything, this reflects poorly on the state of play in two important actors in making government work,' said Max Stier, president and CEO of the Partnership for Public Service, a nonprofit research organization. 'Changing these systems is difficult in the best of circumstances.'
To make pay for performance work, there must be more cooperation and collaboration between unions and the administration, Stier said. 'Litigation doesn't generally encourage cooperation, unfortunately.'
Few argue that DOD's personnel system is not in need of reform. For example, although DOD has 750,000 civilian employees, it has 2 million position descriptions, Lacey said.
And too often, a commander will assign work to a military employee that could be done by a civilian. 'That's one fewer military [person] fighting the war on terror,' Lacey said. Under NSPS, the military will be doing work that is uniquely military, she said.
DOD will move ahead with NSPS implementation 'as much as we can while it's moving through the court system,' England said, proceeding first with the human resources portion of the NSPS, but not the labor relations part.
Sullivan made reference in last week's decision to an August 2005 decision by U.S. District Judge Rosemary M. Collyer on a similar system at the Homeland Security Department in the case of NTEU vs. Chertoff, which has delayed that system by a year or more.
Collyer also ruled against the DHS systems' provisions for collective bargaining.