NFFE and DoD Coalition Unions Fight NSPS in District Court

(National Federation of Federal Employees)

On November 7, 2005 NFFE returned to the District Court for the District of Columbia to challenge the Department of Defense’s (DoD) published personnel rules, otherwise known as the National Security Personnel System (NSPS).  Following the release of the final rules on November 1, 2005, NFFE, along with nine sister unions, filed a new complaint alleging that the proposed new system violated its enabling statute (the 2004 National Defense Authorization Act at Pub. L. 108-136), Title 5, Chapters 71, 75, and 77.

The published regulations fail to address any of NFFE’s concerns that were raised during the statutory “meet and confer” period, which occurred earlier this year.  Specifically, the regulations remain vague on key issues such as pay, classification, and performance management, but allow DoD to circumvent Veteran’s preference and illegally restrict unions from collective bargaining and employees from pursuing appeals in a fair system.  These regulations, in addition to voiding current agreements that contravene the regulations, now allow for a select group of political appointees to avoid collective bargaining obligations on future, yet unnamed subjects.  Further, the regulations, rather than allow employees to pursue appeals in an expedited manner with due process protections, now manufacture an unreasonable standard of review that ‘greatly defers’ to DoD’s choice of penalty and agency mission, create multiple layers of review for a single appeal, and provide DoD with the ability to overrule, alter or amend decisions of third parties and disregard interim third party orders for interim relief.     

The complaint contains three claims:  1)  reviving the claim the D.C. Court recently dismissed, we charge that defendants DoD and the Office of Personnel Management violated the law in creating the labor relations system without meaningful collaboration with NFFE and other employee unions; 2) the new labor relations system violates the law by eradicating collective bargaining provisions and agreements at the defendants’ will and vesting review of such decisions, as well as other labor relations decisions, in a non-independent reviewing authority controlled by the Secretary; and 3) the new employee appeals system for conduct and performance-based actions is not “fair treatment  . . . (which)  ensure(s) that employees  . . . are afforded the protections of due process.”  As remedy, we ask that the regulations be enjoined from implementation and that the court compel meaningful discussions between the parties concerning the new labor relations system in accordance with the statute.  NFFE and the other union plaintiffs will file additional motions next week to expedite a hearing and decision in this most urgent matter.

On the heels of our successful effort in this same court regarding the Department of Homeland Security’s (DHS) personnel system, the unions are optimistic regarding case outcome.  Since the NSPS enabling statute provides for greater protections for employees and their employee representatives and the DHS ruling has some precedential value in this NSPS lawsuit, the unions hope to capitalize on the previous court’s ruling in support of collective bargaining and employee rights.  We believe both factual and legal arguments will support a successful outcome.