GovernmentExecutive.com

After being rebuffed by two federal judges on its plan to restructure the federal bureaucracy, the Bush administration is looking toward an April 6 appeal as a chance to revive what Deputy Defense Secretary Gordon England has described as an effort to "to change the fundamental system of government."

In the most recent setback, a Feb. 27 decision by Judge Emmet Sullivan of the U.S. District Court for the District of Columbia said that the Defense Department went too far in restructuring the collective bargaining system for its 700,000 civilian employees.

Six months earlier, another federal judge made a similar ruling against the Homeland Security Department's new labor-relations system for its 200,000 workers. Those two departments -- which employ about half of the federal workforce -- are in the vanguard of President Bush's attempt to restrict collective bargaining in the name of national security.

Sullivan ruled that the Pentagon went beyond Congress's intent in 2003 when it gave Defense and DHS until 2009 to come up with a new way of negotiating with unions. "The design of these regulations appears to rest on the mistaken premise that Congress intended flexibility to trump collective bargaining rights," Sullivan wrote, calling the rules "the antithesis of fair." Sullivan enjoined Defense from implementing its system, but invited the department to submit a revised plan.

Sullivan's ruling drew heavily on, and quoted directly from, the decision overturning the DHS regulations. That decision, by Judge Rosemary Collyer, also of the U.S. District Court for the District of Columbia, is the subject of the April appeal.

Both judges zeroed in on provisions in the new regulations giving high-level officials the authority to override collective bargaining agreements simply by invoking national security. Referring to Collyer's ruling, Sullivan called a collective bargaining agreement under such conditions "illusory." Sullivan also pounced on the Pentagon's attempt to replace the government-wide Federal Labor Relations Authority with an internal board appointed by the Defense secretary to decide labor disagreements. On this issue, he went beyond Collyer; she let DHS keep its internal board.

In appealing the ruling against DHS, government lawyers will make their case before a three-judge panel that includes one George W. Bush-appointed judge and one selected by his father. The panel will be led by Senior Judge Harry Edwards, a Carter appointee who is often cited as an expert in the field, based on his book Labor Relations Law in the Public Sector.

Now that two judges have weighed in against these systems, the appeals court is unlikely to overturn the decisions, says Donald Rider, a lawyer and a professor of human resources management and labor relations at the University of Maryland's University College.

Both Homeland Security and Defense will "have an uphill struggle in convincing an appellate court that the district courts' logic was flawed," Rider said. "Judge Sullivan was very resourceful in bringing in the analysis of his fellow Judge Collyer. I think an appellate court is going to have a more difficult time dismissing the reasoning of two district court judges than [it] would if this were a kind of stand-alone decision."

England said that DOD was prepared for Sullivan's ruling and will request an expedited appeal, as was granted in the DHS case. That could yield a decision in six months.

Timing matters. The authorizing legislation includes a sunset clause in the labor-relations section, as England pointed out in November hearings before the Senate Homeland Security and Governmental Affairs Committee. "In November 2009, our authority for the labor-relations provisions expires, unless it is extended by Congress," England said.

If the unions succeed in tying the labor revisions up in court long enough, the department's progress toward establishing the system by 2009 -- the next president's first year in office -- may be hampered enough to dissuade Congress from reauthorizing it.

The unions say their real goal has always been to get the regulations thrown out entirely, not just to delay them in the hope that a new president will stop the effort.

"We always have [timing] in the back of our mind, but it's not something that is realistically close enough now that we can essentially say, 'Well, we don't have to worry about these regulations, because they're going to sunset,' " said Joe Goldberg, a lawyer for the American Federation of Government Employees, who argued much of the unions' case before Sullivan.

The congressional committees that wrote the legislation scaled back the administration's original proposal, and some members are questioning the way the department interpreted their law.

Rob White, a spokesman for Rep. Tom Davis, R-Va., chairman of the House Government Reform Committee, said Davis is planning to hold hearings on the system before the DOD case even makes it to the appeals court. "After we've thoroughly reviewed the court's ruling and after the Defense Department determines what its next steps are, the committee will hold hearings on government personnel reform," White said.

Senate Homeland Security and Government Affairs Committee Chairman Susan Collins, R-Maine, voiced skepticism over the Pentagon's design even before Sullivan's ruling, recommending that a union representative sit on the new DOD labor-relations board.

Sen. Daniel Akaka, D-Hawaii, the senior Democrat on the Senate subcommittee with jurisdiction, said in a statement that he is holding out hope that the department will find a system the unions can agree to, rather than appeal.

"This ruling affirms my contention that [the Defense labor-relations plan] is a no-win situation for Hawaii and the nation's DOD civilian employees. Hopefully, the Department of Defense and the Office of Personnel Management will now engage in meaningful discussions with employee representatives and really listen to their suggestions to develop a personnel system that preserves collective bargaining and appeals in both name and substance."

England's remarks made the possibility of reworking its plans appear remote, but Defense has an incentive to work out the labor system before tackling the even trickier issues of pay, hiring, and promotion. Without a new labor system, the department could have to separately negotiate new rules with every federal employee bargaining unit in the country -- more than 1,000 -- and wait for their current contracts to expire, which may take years, said Joseph Swerdzewski, former general counsel of the Federation of Labor Authority and a consultant to the unions.

COMMENTS

• Disgusted with Dems' motive is not genuine when it comes to our nation's security. This individual actually understands our concerns; it’s just a matter of jealousy. Like anyone else in his/her category, he/she is viewing this from a “Misery loves comfort” perspective. He/she probably works in the private sector where NSPS pales in comparison to their very unethical personnel practices, and wishes to have a union represent him/her. I worked in the private sector for several years, so I can relate very much to that pain and feeling very “disposable.” I got tired of taking all the crap from a penny pinching, slave driving, butt kissed CEO and his management to get my civilian job and have some union protection for the productive work that I do. NSPS is just a step back toward that previous work environment that I had, and I’m not going back to that! Never Again Posted April 4, 2006 10:06 AM
• Dear Disgusted with Dems: What compels you to believe that NSPS has anything to do with national security? Because Dubya said so? So do you still think Iraq has weapons of mass destruction? Do you believe Hussein and Bin Laden were best-buddies, as Dubya attested? Do you think Michael Brown did a "heckuva job" in disaster relief, because Dubya says so? Do you believe Dubya isn't doing illegal wire-tapping because he said he wouldn't (but then turned around and said he would)? NSPS is all about lowering payroll. This will make it easier for DoD to siphon money from payroll and pensions and buy more stuff. It is all about giving DoD arbitrary means to screw federal employees. If you can't see that, then you are a fool. A general rule of thumb that I follow is that any idea or initiative that derives its origin in the Bush administration tends to be a bad idea. I haven't been wrong yet! DSR David Posted March 28, 2006 3:41 PM
• To Disgusted with Dems: I take offense to your insidious remarks. First off, I voted Republican across the board. After realizing what was pending from this administration I joined the union to fight this undermining and pending disaster. One thing to clearly point out, if you can’t see it for yourself, is what this administration is attempting to do is illegal, period. Two judges have already ruled as such. Apparently you have no concept of what you are implying. I would also doubt that you are even a DoD or government employee with any federal agency to make such ignorant statements. Take off your blinders bud and realize this administration is pulling a fast one on not only the federal workforce but the entire nation as a whole. This nation is being sold out right before our eyes at all levels, not just within the federal workforce. If things continue as present we will be a third world country in 15 years or less. The sad thing is that this is the planned intent to place us in this category, regardless if a Republican or Democrat party is in power. In the end, it is all about power with only two classes within the world -- rich and poor. We have come to a point in history were this, my Republican party, no longer cares or respects the majority American voice and its future but is out to push a self-serving agenda to favor the minor populous of wealthy swine that think they can ignore the American middle class majority. We, the middle class, are America. Our elected officials are not serving us as appointed and sworn to do so. They should be ousted for their blatant disregard to follow the majority voice of the American public. I have since registered as an independent and will not vote for any incumbent party member (Republican or Democrat) ever again. America and its future belong to the people and not to either the Republican or Democratic Party. America First!! DF Posted March 28, 2006 11:10 PM