GovernmentExecutive.com

The Defense Department has delayed the rollout of its new labor relations system until March 1 in response to a judge's request that he be given more time to consider a lawsuit challenging the system.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia heard arguments Tuesday in a lawsuit filed by a coalition of federal employee unions against the National Security Personnel System.

NSPS would supplant the decades-old General Schedule pay system with broad paybands that would allow supervisors to use greater discretion in hiring and employee compensation. It also would tie annual raises to a system of rigorous performance reviews. At issue in the lawsuit, however, are other portions of the NSPS regulations that curtail collective bargaining rights for Defense employees.

Sullivan said he needed until March to decide the case on its merits. The department had already agreed to stall the system until Feb. 1 because of the lawsuit. Lawyers for the Pentagon agreed to the second delay, with a few exceptions.

Most notably, the government said it would move forward with setting up the National Security Labor Relations Board as planned. The NSLRB would replace the governmentwide Federal Labor Relations Authority in hearing labor disputes. Its members would be appointed by the Defense secretary with some consultation from unions.

Justice Department lawyer Joseph Lobue, who argued on behalf of the Defense Department and also represented the Homeland Security Department last summer in a similar case, said the government would appoint a chairman, hire staff and complete regulations on the structure of the NSLRB.

The NSLRB would not hear any labor disputes until March 1, Lobue added. Union lawyers agreed to the deal, although they said they will continue to contest the legality of the new board in their lawsuit.

The department said it will retain the right to continue training employees on the workings of NSPS and to develop further details of the system. Recently, Defense announced a significant delay and scaling back of the first installment of the human resources portion of the system to allow more time to work on it.

Sullivan heard more than three hours of arguments on NSPS collective bargaining procedures, and called the Pentagon's ability to waive previously negotiated collective bargaining agreements "the principle question concerning the validity of the labor relations system."

In August, D.C. Circuit Judge Rosemary Collyer ruled that DHS' similar labor relations system was illegal, in large part because of this very ability.

Sullivan said he had read Collyer's decision closely. But both sides pointed out that Congress passed different laws to authorize the Defense and Homeland Security systems, and the departments have developed different regulations to implement them.

"It's a very separate case," Lobue said. "It's also a different regulation. The [DHS] regulation authorized the agencies to impose limitations on bargaining by any manager in the agency. Here the issuances that we're talking about can only be promulgated by a discrete group of people. You don't have a situation where the danger is a lower level agency official can impose a limitation on bargaining."

Also at issue in the case is the process by which the department developed the NSPS regulations. Government lawyers said the agency met its legal obligation to meet and confer with unions by holding a number of meetings and by receiving input to the regulations when they were published in the Federal Register.

But the unions argued that the meetings served no purpose because the agency ignored their comments.

Sullivan could rule that because the process was illegal, the regulations are voided in their entirety.

COMMENTS

• Have any of you looked at how much money you're going to lose? I did and it's pretty clear that my career earnings will be lowered by a minimum of $100K. Looks as though this whole idea is nothing more than the government trying to balance the budget on our paychecks once again. It's ridiculous to reinvent a wheel that isn't broken although it's a good cover for screwing us all out of money we would have earned under the current system. Thanks much, not! GovExec.com reader Posted February 2, 2006 10:50 AM
• No one is going tell me I’m not a good American just because I’m speaking out against NSPS. Government employees have very limited union representation, and now DoD wants to cut that even more. Fortunately I’m only a few years away from retirement; I sympathize for the younger work force once NSPS is implemented. I’d like someone to tell me exactly how the current government employee system has not performed at a highly effective level, especially during these trying times. Homeland Security and NSPS has nothing to do with how effective employees will or will not perform. The think tanks currently in charge simply want more power, and more flexibility to be the big bullies on the block. Congress, the Senate, and the current administration serve their terms, and then get astronomical benefits when they retire. Government employees don’t have any of those luxuries. They are just subjected to the idiosyncrasies of an authoritative, arrogant group of politicians who implement law that they have no knowledge of. Tony Hoeppner Posted January 26, 2006 9:55 AM
• When I was a child, and about to be caught doing something I knew was wrong, I would often "announce" to my mother or father that I was going to my room to clean it. My hope was that in doing the right thing now, would overcome the wrong done previously. DoD seems to be applying the same twisted logic that I had as a boy of six. DoD's recurring delays are trying to be sold on the perspective that this is "event driven, not timeline driven" as DoD officials repeatedly state. What ever happened to "do it right the first time"? The first time I was told to clean my room, taught me what was expected and how well those tasks were expected to be performed? After spending the day in a room redoing relatively simple tasks, I learned quickly. The difference with DoD is that they actually still believe they are going to get away with something. Delaying it to put a new media spin on the same old thing just ain't getting it done. Mark Gibson Posted January 25, 2006 10:03 AM