GovernmentExecutive.com

An appellate court ruling striking down the Homeland Security Department's new labor relations scheme likely will set a strong precedent for the Pentagon's similar case, and lawmakers on both sides of the aisle are asking DHS to work things out with the unions.

With three appellate judges -- two Republicans and Judge Harry Edwards, a Democrat considered to be an eminent voice on public sector labor relations -- unanimously striking down the collective bargaining rules, and with such clear language, officials at both departments may be forced to work out a system to which the unions can agree.

"The court was really quite impatient," said Charles Craver, a labor law professor at George Washington University. "There were some comments that were really quite stinging."

The government could ask the full U.S. Court of Appeals for the District of Columbia to take the case en banc, or with the full panel instead of the three-judge panel that issued this decision, but the political diversity of the panel makes it less likely, Craver said.

"It was a very, very heterogeneous panel," Craver said. "Judge Edwards is viewed as more progressive, the other two judges are more conservative and it was unanimous."

Coupled with last summer's lower court decision from Judge Rosemary Collyer, which also ruled the system to be illegal, there's broad consensus in the court, he said.

"Judge Collyer, she was a more conservative Republican and very well respected," Craver said.

The Pentagon's similar case, which is waiting for the same appeals court to set a date for oral arguments, may now be lost before it has even been argued. This decision would bear more weight on another appellate decision, especially since it is in the same appeals court, than the earlier lower court decisions did on one another.

Judges in the Pentagon case "would have to give [this decision] a lot of deference," Craver said. "They might be able to distinguish it by saying the specific language is different. If they are very similar, the judges would be hard-pressed not to follow. It would be different if it was a different circuit like the Sixth Circuit. One panel cannot overrule another panel. They can try to distinguish it, negotiate it."

The government could ask the Supreme Court to reverse the decision, but with agreement from every judge so far who has heard the merits, there is no dispute for the high court to resolve.

With this fourth legal loss to the administration's labor overhauls in these two departments, members of Congress are asking management to take a step back.

Sen. George Voinovich, R-Ohio, a leading voice pushing for the overhaul and chairman of a Senate Homeland Security and Governmental Affairs subcommittee, suggested the agency try to work it out with its unions.

"In light of today's ruling by the court, I encourage the department to renew discussions with its employees over sections of the regulations enjoined by the court," Voinovich said.

Voinovich's counterpart, Sen. Daniel Akaka, D-Hawaii, said, "Now is the time for the department to sit down with the federal employee unions to work out a personnel system that is fair, contemporary, flexible and has the support of employees and the department's leadership."

Rep. Bennie Thompson, D-Miss., ranking member of the Homeland Security Committee, said he is "hopeful that Secretary [Michael] Chertoff will finally see the writing on the wall."

COMMENTS

• This would, on the surface, appear to be a "no brainer," except that the people who are trying to force this down the throats of the federal workforce do not seem to possess brains. If the courts find it illegal, the unions’ lawsuit is upheld and the majority of the workforce finds it demoralizing, then it should be scrapped, and started fresh and with input from all parties that will be affected. "Pay for Performance" will become yet another oxymoron within the federal government, similar to "military intelligence" and "Federal Emergency Management Agency" and will be but another dismal legacy of the King George dynasty. I am afraid that all due pressure will be put to bear to get this travesty incorporated before the end of his monarchy, and he will break something that did not need to fixed. The only problem with the current general schedule system is a lack of intestinal fortitude and training on the part of management to enforce the rules and generate and document the performance of those who they are supposed to be managing. Identifying low performers, giving them opportunities through performance improvement plans, and then denying step increases is one way to improve performance. Rewarding good performers with quality step increases and utilizing a fair and equitable incentive awards program will adequately stimulate continued good performance. JD Posted July 5, 2006 1:33 PM
• There is only one way for any agency to be its most productive and provide value to the taxpayer...that is by everyone working together, sharing the same vision, while recognizing that all employees have individual work goals. What I've seen in my 25 years in federal human resources, is a steady decline in senior management's focus on getting the job done by working with employees. My perception is that management has forgotten what the definition of management is -- that is, getting the job done through and with people. The fatal flaw in the DHS and Pentagon human resources systems is that they were driven by anti-union ideology and the notion that only management knows what's best for an organization. The LR process that was shot down by the courts reminded me of the archaic notion that "you should be so happy to have a good job, that nothing else matters." I can assure you that philosophy won't hold water with the new generation of worker, who like current federal management puts self interest above loyalty to the organization. If the federal government wants to prepare itself to be productive with the new generation of worker, it better look within itself and identify young, talented individuals to move into the management ranks, who identify with this generation of worker. The "pay-for-performance system” these guys are trying to implement is complex and has the potential to be the most demoralizing system ever if implemented incorrectly. Its success will be in large part judged by how the marginal or poor performer is handled. The high performer usually rises to the top no matter what system is in place. GovExec.com reader Posted June 29, 2006 8:59 AM
• This one is easy. Mr. Bush will whip out a signing statement and declare the DHS move legal and necessary for the American people to defeat terrorism. That will settle all this bickering. If the Republican judges can't legislate from the bench then King George will do it from the White House. rds Posted June 29, 2006 11:41 AM