The Rollout

Changes to adverse action policies and procedures, labor relations practices, and appeals systems can be implemented at any time within the next six months, although DHS has indicated that these changes may take affect this spring.

The pay, performance and classification systems will be phased in more gradually with different groups of employees moving into the new systems at different times. DHS says bargaining unit employees in CBP will be converted to the performance appraisal system later this year. According to DHS, you will receive your first rating under the new system in 2006; will move off the General Schedule classification and pay system in 2008; and see the first adjustments to your pay under the new basic pay system in 2009.

Meanwhile, the current national agreement remains in effect although any provisions in conflict with the new regulations will become unenforceable.

Labor Relations

The DHS regulations severely undermine the collective bargaining process and are aimed at decreasing your voice in the workplace. Many matters now subject to bargaining are no longer bargainable. Impact and implementation bargaining over key working conditions has been severely curtailed.

The regulations also confer upon DHS management an unfettered right to issue agency-wide directives that are not subject to collective bargaining. This provides the department with a means to gut what few collective bargaining obligations remain in the final regulations. Additionally, those few remaining areas that are potentially negotiable are subject to a new standard that may dramatically curtail bargaining-i.e., proposals must significantly impact multiple employees in the portion of the bargaining unit affected by management’s action.

A new internal DHS labor relations board, directly under the authority of the DHS secretary, strips away independent review of collective bargaining disputes. The internal board will assume many of the responsibilities now discharged by the Federal Labor Relations Authority (FLRA), and the impasse resolution functions of the Federal Service Impasses Panel (FSIP). This three-member board will be appointed by the DHS secretary. In a departure from current law, Senate confirmation is not required, nor is political diversity.

NTEU believes that some aspects of the labor relations regulations are illegal and has filed a federal lawsuit over them.


Your Pay

Details are still sketchy regarding this extremely important issue, but here’s what we do know. DHS will create occupational clusters and then create pay bands within those clusters. Each cluster may have up to four pay bands (that mimic a career ladder) and move from entry/developmental to supervisory. DHS will also create a 14-member Compensation Committee, with four seats being held by employee representatives.

The role of the Compensation Committee is to make recommendations to the DHS Secretary on adjustments to the pay bands and the rates for each occupational cluster. The committee may also weigh in on a possible locality pay component, performance-based pay adjustments, and other strategic pay matters.

Bargaining over any aspect of the new pay system is forbidden by the DHS regulations. Additionally, DHS has hired Northrup Grumman and agreed to pay the company up to $175 million to design the system. So far NTEU has not been involved in this process but President Kelley is making inroads. In a recent conversation with Secretary Ridge, he agreed to establish a process so NTEU could receive regular briefings about the pay system and, more importantly, provide critical input into its development. NTEU will be watching your new pay system very carefully and updating you on its development.

Mandatory Removal Offenses

The regulations provided a preliminary list of potential mandatory removal offenses (MROs). A final list will be approved by the DHS secretary and published in the Federal Register on an annual basis. The preliminary list includes intentional or willful acts that involve:

• potential acts of terrorism;

• weapons of mass destruction or materials related to a terrorist act;

• allowing transportation or importation of illegal weapons;

• improper entry of an individual to the U.S. who could compromise homeland security;

• accepting bribes or other personal benefit that compromises homeland security;

• divulging law enforcement sensitive or confidential information; and

• activities that compromise the information, economic, or financial infrastructure of the federal government.

Adverse Actions and Appeals

This is an area of the regulations that, thanks to NTEU, underwent some very positive changes from the proposed regulations to the final regulations. Unfortunately, there were not enough positive changes and many unacceptable, and even illegal, provisions remain.

On the positive side, the proposed regulations called for the elimination of arbitration for adverse actions and this right has now been restored in the final regulations. DHS also has agreed to retain the preponderance of evidence standard for adverse actions and apply the same standard to performance-based actions. In the draft regulations the standard of evidence had been significantly lowered for DHS and against employees.

Even though DHS modified its stance on the ability of the Merit Systems Protection Board (MSPB) to mitigate penalties, it will still only permit mitigation in cases involving DHS employees when the penalty is “wholly unjustified.” NTEU believes this action exceeds the authority granted by the Homeland Security Act which allows DHS to change the mitigation standard only to further the fair, efficient, and expeditious resolution of matters involving DHS employees. Additionally, DHS took it upon itself to rewrite the MSPB procedures for DHS employees, another authority Congress did not grant. The department’s attempt to give itself more power than Congress provided is part of the federal lawsuit NTEU has filed against DHS.

NTEU’s Positive Impact on the Regulations

NTEU spent countless hours preparing proposals and conferring with DHS and OPM officials on the new regulations. Below are highlights of some of the more significant changes to the proposed regulations based on NTEU’s work during the “Meet & Confer” process.

Proposed:No bargaining over operational management rights.
Final: Unions can confer over procedures. Limited appropriate arrangement bargaining.

Proposed: In grievances over performance ratings, ratings are upheld unless found to be arbitrary and capricious.
Final: Standards similar to current standards remain for grievances involving performance ratings.

Proposed: Eliminated unions’ right to be present at certain investigatory interviews.
Final: All “Weingarten” rights retained.

Proposed: Excluded adverse actions from the grievance/arbitration process, leaving MSPB as only appeals forum.
Final: Choice between arbitration and the MSPB for adverse action appeals preserved.

Proposed: Employees would have five days to submit an oral or written reply to a proposed adverse action.
Final:Period to submit oral or written reply increased to 10 days.

Proposed: Established the broad framework for the pay, performance and classification system with no employee or union input.
Final: Creates a Compensation Committee of 14 with four union representatives that will make recommendations on pay issues.