Don’t Want NSPS? Join A Union!

As NSPS is challenged in court, DoD is moving out by scrupulously avoiding unionized employees. This gives thousands of DoD professionals a way out–they can form a bargaining unit.

I have never been a member of a Federal employee union. On the contrary, I sat across the negotiating table from unions when I worked in what’s now called human resource management. Armed with such dubious credentials, I have some advice for union organizers and their national leaders: Pour every resource you have into enlisting new members in Department of Defense (DoD) facilities… now!

The times they are a-changin’

Recently, the Department of Homeland Security (DHS) gave up on its effort to neutralize unions. The hope was to that new regulations (known as “MaxHR”) might limit the influence of DHS’s many national and local unions. Disempowering union locals would ensure a quicker and easier implementation of pay-for-performance (PFP) and other provisions of MaxHR. The US Court of Appeals for the DC Circuit, shot down the anti-union provisions DHS had designed – so convincingly that an appeal to the next level seemed futile.

Undaunted by the fate of their sister agency, DoD is forging ahead in hopes that their National Security Personnel System (NSPS) will meet a more benevolent fate in court. While the wheels of justice continue to grind, implementation of the Defense’s new PFP provisions forges ahead – scrupulously avoiding unionized employees! This is a “fail safe” position. If the courts overturn the anti-union provisions of NSPS, pay for performance will still have been instituted for DoD’s non-unionized workforce. It is presumed that the Department will continue with two different pay and classification systems indefinitely.

As “Spiral 1.2” (Does this sound like a video game to anyone other than me?) envelops more commands, thousands of non-unionized DoD employees face the implementation of pay-for-performance in the coming months. Like others already spiraled in, they will no longer be GS employees (WG and WS employees are virtually unaffected by NSPS) but be placed into “pay bands”, about which readers have heard much – most of it negative. Any future salary increases will be problematic as they will be based not only on positive performance evaluations but also by the value of “shares” in a “pay pool”.

Unlikely union recruits

Supervisors, managers, HR specialists, and a few others in special categories can do little to divert this slow-but-inexorably-moving train. By law, they are ineligible for union representation. However, thousands of professionals who could be (but are not now) covered under a union agreement have a way out. They can request an election to form a “bargaining unit” represented by a labor union or request a similar election to join others already unionized at their activity.

Many of DoD’s physicians, engineers, and attorneys don’t realize that unions can represent non-supervisory professionals. Such professionals work for commands as diverse as the Corps of Engineers, Defense Contract Audit Agency, Naval Shipyards, and the National Guard. They were commonly excluded from voting (and hence being eligible for union representation) in past elections. Labor organizers believed they were unlikely to vote “yes”. Most of DoD’s union contracts (and there are hundreds of ‘em) exclude “professional employees”. Now that could change.

Anxiety spawns opportunity

Unions often emerge in times of uncertainty, when employees feel threatened by their own management. Reorganizations, shifting missions, and tough-talking leadership can be reasons for Feds to want a collective voice and workplace protections that unions offer. Defense’s PFP plans and timetables may be unintentionally opening a window that DoD would just as soon keep shut.

Employees at every level of the department know that few supervisors and managers are equipped to make the hard decisions that PFP demands. Leadership skills are often less prized than technical savvy – especially among professionals. Most supervisors are untrained in the harvesting and maintenance of appraisal data. Moreover, weaker leaders may fail to “bring home the bacon” that resides in pay pools while decisive ones may prove arbitrary in how they divide the spoils they garner.

As FedSmith readers have noted again and again, PFP doesn’t engender spasms of confidence among the rank and file. Employees facing upcoming Spirals fear pay pools may be siphoned to shallower levels in years to come. Additionally, as bosses huddle to decide who gets how much, management cronyism, socialism, and despotism are common concerns.

Opportunity knocks

A savvy union organizer might have an easy sell when approaching DoD’s yet-to-be-unionized workers. If I were working for a union I’d just say, “If you elect to have a union by this fall, you’ll be exempt from NSPS.” Having discussed NSPS and PFP with several DoD clients, such a pitch might provoke serious interest.

As union membership (the privilege of paying dues and participation in union affairs) is voluntary, such unrepresented employees can vote “yes” to a union without obligation. By law and regulation, a thirty percent “showing of interest” among petitioning employees gives rise to an election. Signing on to such a petition is simply a call for such an election. Signatures don’t signify a pro- or anti-union stance among the petitioning employees.

Petitions are filed with the Federal Labor Relations Authority (FLRA). That neutral agency then conducts a secret ballot election at the worksite. If more than 50% of cast ballots favor a union, recognition is granted and PFP becomes unlikely for the foreseeable future. Voila!

For anyone interested, the entire union election process is covered by the FLRA. DoD itself addresses union membership eligibility issues on one of its websites.

Which side am I on?

I am neither for nor against unions. On the one hand, they are representative democracies in the workplace. Union officers (both national and local) are elected by the membership. Management, on the other hand, is an oligarchy. Leaders are accountable to their superiors.

As a colleague of mine once put it, “Managers are paid to focus on more, better, and faster.” When unions simply oppose management, they are often perceived as favoring just the opposite. Much of my professional commitment is to bridge this gap and foster a co-operative environment in which both sides can succeed.

In the case of pay-for-performance, however, I’m more in alliance with the unions. I believe DoD has the cart placed well in front of the horse. Rather than beginning with the infrastructure needed to make such a system successful, DoD is forging ahead with its spirals. From where I sit, this has more to do with ideology than pragmatism. As things stand now (a little more than half a year from implementation) I’d recommend unions to anyone who wants to avoid pay bands, pay pools, and pay uncertainty.

About the Author

Robbie Kunreuther is the Director of Government Personnel Services (GPS). GPS provides 1 to 3-day seminars to Federal agencies in four subject areas: Dealing with performance and conduct issues; Developing sensible performance appraisal criteria; Fostering cooperative labor-management relations; and Applying mediation skills in the workplace. Over the years, Robbie has trained thousands of Federal supervisors, managers, HR specialists, and union officials. For more information about him and GPS, go to