Department of Defense: Keeping Our Nation

February 9, 2009

Introduction
AFGE is honored to represent more than 200,000 federal employees in the Department of Defense (DoD)—hard-working public servants whose skill and dedication were instrumental in winning the Cold War and making the military capabilities of the United States of America second to none.
AFGE’s DoD members perform an extraordinary variety of critical tasks for the warfighters in Iraq and Afghanistan as well as for taxpayers back home—from maintaining planes, ships, and tanks at constant states of readiness in depots and arsenals to administering contracts for goods and services and trying to prevent big defense contractors from raiding the Treasury.
When not feverishly attempting to privatize the jobs of hundreds of thousands of DoD employees, the Bush Administration tried to strip civil servants of their protections against politics and favoritism and bust their unions.  Now AFGE must work with the Congress and the new Obama Administration to clean up the contracting out mess and eliminate the last remaining vestiges of the now notorious National Security Personnel System (NSPS). 
Cleaning Up the Privatization Mess

According to a recent report by the DoD Inspector General (IG), the most A-76-aggressive agency in the nation’s history, both during the Bush Administration and its predecessor, DoD, intends to make comparatively little use of the costly and controversial OMB Circular A-76 privatization process in future years, thanks to the work of AFGE Activists and their Congressional champions. 

According to the IG (Report No. D-2009-034), the services and defense agencies, combined, intend to review little more than 10,000 jobs through FY2014—far short of the hundreds of thousands of federal employee jobs that DoD acknowledged that the Bush Administration’s Office of Management and Budget (OMB) had insisted it review for privatization through FY2013, as recently as December 2007. 

Of course, AFGE Activists are unlikely to allow so many of their jobs to be reviewed under an A-76 process that is widely acknowledged to be both broken and inequitable.  How did this remarkable transformation occur—even before the election of the more federal employee-friendly Barack Obama?  There is no question that DoD tried to carry out OMB’s A-76 direction into 2008.  However, because of a series of “shocks to the systems” as well as the usual decline in influence that any Administration’s OMB would experience in its eighth year, that effort could not be sustained.  Among the shocks to the system that freed DoD and other agencies from the shackles of OMB’s A-76 quotas:

  1. December 26, 2007:  Senator Richard Durbin (D-IL) and Representative Jose Serrano (D-NY), the chairs of the Senate and House Financial Services Appropriations Subcommittees, include in the FY08 Financial Services Appropriations Bill several reform provisions, including a prohibition against OMB A-76 direction to all agencies, a prohibition against most direct conversions (i.e., giving work to contractors without first conducting a full and fair public-private competition), the establishment of bid protest appeal rights in all agencies, and the exclusion of health care and retirement costs for all agencies other than DoD.  Most observers regard the package of reforms as a strong repudiation of OMB’s competitive sourcing effort. 
  2. January 22:  GAO issues a report (08-195) that demonstrates the Forest Service A-76 program costs more than it saves; in reporting that all agencies that follow OMB’s methodology make the same mistakes, the report casts doubt on the entire competitive sourcing effort.
  3. January 28:  Thanks to Representative Ike Skelton (D-MO) and Senator Carl Levin (D-MI), , the chairs of the House and Senate Armed Services Committees, and Senators Edward Kennedy (D-MA) and Barbara Mikulski (D-MD), the FY08 Defense Authorization Bill includes several reform provisions, including a prohibition against OMB A-76 direction to DoD, a prohibition against automatic recompetition of work performed by federal employees in DoD, a prohibition against most direct conversions in all agencies, the establishment of bid protest appeal rights in all agencies, the establishment of an insourcing program for DoD, the exclusion of retirement costs from the cost comparison process, and the establishment of a contractor inventory for DoD.  Most observers regard this as a particularly strong repudiation of OMB’s competitive sourcing effort in DoD.
  4. May 14:  At the request of the Department of the Army, the House Armed Services Committee passes, with some Republican support, an amendment at the mark up of the FY09 Defense Authorization Bill that would suspend new A-76 studies in DoD for three years.  Under the leadership of Chairman Skelton, the House subsequently passes the bill with no opposition to the provision.
  5. June 24:  The House mark up of the FY09 Financial Affairs Appropriations Bill includes a government-wide prohibition against new A-76 studies, thanks to Chairman Serrano. 
  6. July 10:  The Senate mark up of the FY09 Financial Affairs Appropriations Bill includes a government-wide prohibition against new A-76 studies, thanks to Chairman Durbin.
  7. July 11:  OMB announces that it is changing the name of “competitive sourcing” to “commercial management” and that for the first time, albeit in the waning days of the Bush Administration, agencies can gain credit for alternatives to A-76 that “do not ordinarily involve public-private competition or the potential conversion of work from the government to the private sector.”  Most observers agree that this last-minute concession reflects the extreme unpopularity of the A-76 program with Congress, agencies, and federal employees. 

Unfortunately, many A-76 studies were in progress when President Obama took office.  AFGE is urging the nation’s new leadership to cancel these privatization reviews in many instances.  In particular, the A-76 direction from the Bush Administration’s OMB will cast its gloomy shadows well into the Obama Administration in the form of “banked savings” A-76 studies, i.e., whereby DoD adjusted an agency’s or an installation’s budget several years ago on the assumption that an A-76 study would be held and that the level of predicted savings, which have never been corroborated by GAO at any time or any IG, would be achieved--before a solicitation has ever been issued.  For a more detailed discussion of AFGE’s agenda on contracting out, please see the Privatization Issue Brief.
Regulating Use of High Performing Organizations (HPO’s)
In some parts of DoD, the threat has shifted from the OMB Circular A-76 privatization process to High Performing Organizations (HPO’s), particularly in the Army Corps of Engineers.  After the Congress, led by the House and Senate Energy and Water Appropriations Subcommittees, cut off funding for A-76 studies, the Army Corps of Engineers was ordered by the Office of Management and Budget (OMB) to implement HPO’s instead.  An HPO is essentially the A-76 process’ Most Efficient Organization (MEO) plan. Given that the quality of MEO plans varies, so does the quality of HPO’s.  For example, an HPO of the Coast Guard’s civil engineering function was defunded by the Congress because it would have imposed drastic cutbacks in the federal workforce.  Although it’s difficult to generalize, one could say that the more an HPO employs assumptions—of budget savings or personnel cuts—the more objectionable it is going to be to AFGE, especially when such cuts are arbitrarily proposed by management without any consideration of subsequent cuts in services.
HPO’s can also be used to make wholly unwanted changes to workplace rules. For example, an Army Corps of Engineers HPO of its logistics workforce was used to dissolve all collective bargaining arrangements and require all employees to reapply for their positions without regard to seniority and veterans’ preference. No plausible rationale was advanced for these changes other than administrative convenience.  At the request of AFGE and other unions which represent Army Corps of Engineers employees, the Congress included language in the FY08 and FY09 Energy and Water Appropriations Bills to prevent any other HPO’s from being implemented without the approval of the legislative branch.
Preserving DoD’s National Security-Critical Industrial Facilities (Depots, Arsenals, Ammunition Plants):
Given the Congress’ decision in 2006 to extend without limitation a loophole that allows depot maintenance workload performed by contractors on the depots to not count towards the contractor side of the 50/50 split, AFGE is interested in working with lawmakers to strengthen the in-house depot maintenance capability through the following actions:

  1. a comprehensive, independent study and survey to identify barriers to accelerated depot improvement;
  2. a requirement that services develop weapon system sustainment roadmaps;
  3. the establishment of programs that formally link trade schools / communities / colleges / universities with depots as part of a comprehensive long-range strategic personnel plan specifically for the depots;
  4. allowing for reapplication of depot funding saved through continuous process improvement initiatives to the depot sponsoring the initiative; and
  5. development and deployment of a plan to improve the method for determining maintenance repair rates and pricing accuracy.

The Army must secure from the Congress the necessary authority to dismantle the depots and ammunition plants.  The arsenals are the exception.  The Secretary of the Army could use authority under 10 U.S.C. 4532 to "abolish any United States arsenal that he considers unnecessary" without any Congressional input.  AFGE continues to work with House and Senate lawmakers, on a bipartisan basis, to oppose such an effort.
AFGE strongly opposes any attempt to undermine the current in-house industrial capabilities for depots, arsenals, and ammunition plants, and AFGE will work closely with interested House and Senate lawmakers to repel such efforts.
Eliminating a Requirement that Air Reserve Technicians Wear Uniforms
AFGE continues to work with the Congress to revoke a rule that makes wearing uniforms mandatory for Air Reserve Technicians (ART’s).   The ART program was developed in order for a small group of expert reservists to teach other reservists.
ART’s are Title 5 civilian federal employees who, as a condition of their employment, must maintain a position in the Air Force Reserve. They work as civilians Monday through Friday, and one weekend a month they don their uniforms and are the resident experts of the work area, as other reservists report for their weekend commitments.
ART’s can be distinguished from Title 32 federal employee Air National Guard (ANG) technicians who are required to wear uniforms as a condition of their employment, a requirement that was known when they applied to become ANG technicians. 

Moreover, ANG technicians only interact with other ANG personnel at their installations.  However, ART’s work with active duty military personnel as well as regular civilians. At an Air Force base the active duty military personnel are always in charge.  If ART’s are forced to wear uniforms as part of their civilian jobs, it is inevitable that higher ranking civilian reservists will be given orders by lower-ranking active duty military personnel.  This would be unfair to the ART’s who have worked hard to earn their ranks.  Moreover, it would undermine the chain of command.  Our military has been built on lower-ranking personnel taking orders from higher-ranking personnel. This new policy will destroy good order, confuse rank structure, and kill the ART’s morale. 

For the fifty years leading up until August 9 2007, ART’s could choose whether to wear their uniforms during the week in their civilian capacities.  However, on that day, the Air Force Reserve Command changed Air Force Instructions (AFI) 36-703, 36-801 and 36-2903, making it mandatory for ART’s to wear their uniforms. 

In fact, ART’s will face discipline if they do not wear their uniforms and if they fail to follow the myriad military customs and courtesies required of individuals wearing uniforms.  ART’s now must get weekly haircuts.  ART’s must now salute all people of higher rank.  ART’s can’t patronize many conventional establishments because they are wearing uniforms.  All the responsibilities and requirements of active duty military personnel are imposed on ART’s while they wear uniforms.  At the same time, ART’s can earn no additional military benefits such as medical coverage, housing allowance, and points towards retirement. Active-duty military personnel can retire after 20 years of service, usually around age 40.  ART’s, on the other hand, have to work until they are at least 55 and on average work until around age 60 in order to get full credit under the civilian Federal Employee Retirement System (FERS).

Most ART’s were active duty members who wanted to transition to a civilian lifestyle, yet continue to serve their country.  They likely would not have joined the ART program if they knew they had to wear the uniform every day without the commensurate pay and benefits.  AFGE is concerned that the uniform requirement is designed to diminish collective bargaining rights of ART’s and subject federal employees to adverse action without recourse.  AFGE is also concerned that the requirement is creating a back door draft: the change in Air Force instructions effectively drafts ART’s for active duty military service and, worse, without paying them for that service and sacrifice.

AFGE is also fighting back in court.  An AFGE lawsuit on the uniform requirement is pending before Judge Emmet Sullivan of the United States District Court for the District of Columbia.

Eliminating Discriminatory Requirements for Security Guards

In October 2006, the Army issued a physical testing regulation (AR-190-56) for Army Civilian Police and Security Guards, which was subsequently broadened to include all DoD Security Guards.

This regulation conflicted with earlier Congressionally-imposed requirements that DoD hire qualified veterans who had service-connected disabilities.   Hundreds of security guards throughout DoD could face strong disciplinary measures, including termination, for being unable to comply with this new regulation, including 25 dedicated security guards at Fort Banning.   

DoD security guards who fail the test may be transferred to other positions, but it is not certain whether the other positions will have comparable salaries or possibilities of advancement. 

Many of the adversely affected DoD security guards have excellent work evaluations and their performance is not at all affected by their service-connected disabilities. Indeed, these dedicated, highly experienced public servants and first responders have provided unsurpassed protection to our military bases and the public.  They played a critical role in protecting us after the 9/11 terrorist attacks because they had the experience and institutional expertise to effectively screen entrance into military bases under heightened security threats.

Quite simply, the new physical testing regulation is not relevant to the duties of DoD security guards.  Under the new regulation, employees are required every year to prove that they can run 1.5 miles in 17.30 minutes, sprint 330 yards in 81 seconds, do 21 pushups in two minutes and 29 sit-ups in two minutes. 

If the DOD identifies a future need for a higher level of physical fitness to perform some duties, it can realign current positions to impose the higher standards where they are relevant to successful performance.   However, security guards already performing these jobs should be covered by a grandfather clause. They are also entitled to reasonable accommodation for age and disability in the form of alternate testing events, such as bicycling and swimming.  Security guards should be provided adequate advance notice of testing dates so they may prepare for the fitness tests after receiving medical clearance.

By imposing this unnecessary regulation, DoD is breaking its promise to the veterans with service-connected injuries hired under this special authority.  As the federal government’s largest employer of veterans, DoD should act consistently with government-wide veterans’ preference policies, as well as its own ostensible commitment “to providing every disabled veteran who wants to serve our country as a DoD civil servant the opportunity to do so.”

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