GovernmentExecutive.com

The Homeland Security Department's proposed personnel regulations do not provide adequate collective bargaining rights for employees, rendering the rules illegal, a judge decided late Friday night.

In her opinion, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia wrote that when Congress created DHS, it clearly required the agency to ensure collective bargaining rights, and the agency violated that requirement by not providing for a binding contract.

The regulations DHS proposed would have provided officials with a substantial caveat in all bargaining agreements: the right to issue a directive at any time that negates a prior agreement.

Collyer wrote that with this rule, "collective bargaining would be on quicksand" because any agreement could be invalidated the next day by a simple order. Although the regulations would have required the agency to "meet and negotiate in good faith," the judge found that protection inadequate.

"Under such circumstances, a deal is not a deal, a contract is not a contract, and the process of collective bargaining is a nullity," Collyer wrote.

This ruling comes as a result of a lawsuit brought by the National Treasury Employees Union and four other labor organizations on behalf of DHS employees. Collyer heard more than two hours of oral arguments from both sides on July 14. The agency was set to implement its labor relations regulations Monday.

The judgment affects the labor relations part of DHS' proposed regulations, and not the performance management element, which includes replacing the General Schedule system with a pay-for-performance system.

NTEU President Colleen Kelley said the judge's decision "validated our arguments that DHS and [the Office of Personnel Management] far overstepped their boundaries and they abused the discretion given to them by Congress when they created the Department of Homeland Security."

Kelley wrote a letter to DHS Secretary Michael Chertoff on Monday, saying this decision presents "a new opportunity" to develop a personnel system NTEU can stand by, and requested a meeting with the Secretary as soon as possible.

It is now up to DHS officials to either craft a new set of collective bargaining regulations, or to appeal the decision to a higher court. On Monday, DHS spokesman Larry Orluskie said department officials are evaluating the ruling's impact and considering the next steps. The department has 60 days to bring an appeal.

In addition to her decision regarding collective bargaining, Collyer also found that DHS' system "improperly interferes" with the roles of two labor authorities, the Federal Labor Relations Board and Merit Systems Protection Board.

The Federal Labor Relations Authority, which traditionally plays a fact-finding and adjudicatory role in labor disputes, would have been reduced to an appellate body, with a newly anointed Homeland Security Labor Relations Board taking over its prior duties for the agency. Collyers decided that DHS did not have authority to modify the FLRA's duties that dramatically, without clearer Congressional intent to do so.

As for the MSPB, the court struck down as unfair new standards by which the board could mitigate the penalty for employee misconduct. The proposed rules said that the MSPB could not modify the department's penalties unless the action is found to be "wholly without justification."

Collyer said this stringent criterion would "render an MSPB review almost a nullity and...effectively insulate DHS adverse actions from review."

In her ruling, however, Collyer did uphold DHS' ability to adopt offenses that call for mandatory removal, as well as the department's creation of the Homeland Security Labor Relations Board both of which the unions brought as part of their lawsuit. DHS officials now will have to decide how to employ the HSLRB without interfering with the mandate of the FLRA.

According to NTEU counsel, Collyer was appointed to her judgeship by President Bush and has an extensive labor relations background, including time served at the National Labor Relations Board.

COMMENTS

• I am familiar with pay-for-performance systems. In fact, I have worked under such a system for 27 years. Each year or two or three my supervisor gets a printout that inquires about my performance for the previous period. If I have performed my job satisfactorily, (s)he approves a step raise; if not, it is disapproved. Each year, I also get a performance rating. If I have performed well enough, my supervisor has the option of granting an award of some kind. That same system allows for non-performers to be ousted from the civil service. True, it takes a some documentation on the part of the supervisor, but it can be done. If you do not believe me, take a look at the number of appeals cases handled by the Merit Systems Protection Board. The very name of the Board says it all. Any dismissal that is truly warranted is upheld by the Board. The Board seems to be very conscientious in serving the system fairly and honestly. (There are other agencies/organizations/courts that can and do get involved in personnel issues with the same fairness and honesty as the Board.) This new system seems to be more concerned with allowing a supervisor to avoid due process for employee dismal or give raises based on personal relationships than establishing an integral personnel system that is fair. It is a spoils system. It is a dictatorial answer to a non-existant problem. It leaves no oversight to protect employees from overzealous, tyrantical or bad managers. It is my way or the highway. Based on the previous submissions, comments from my peers and the other opinions I have read, supervisors may not have to worry about dismissing employees or handing out performance pay. They are going to be too busy recruiting and training new employees who will undoubtably resign (before getting dismissed) when they get a real taste of MaxHR. I sure hope management has some very patriotic and loyal friends and family who are willing to put it on the line to protect this country. Those may be the people upon whom our lives depend. At least they will be well paid given all those pay-for-performance raises approved by their nepotistical supervisors. Where is the line to submit my retirement paperwork? GovExec.com reader Posted August 30, 2005 11:55 AM
• The president of our country knew what the DHS personnel system was and he approved it. Nothing goes forward without his approval and it shows our president is not for the workers but for management types (some are managers and the rest are pretenders). This is why we have so many problems with our country. The president is not for the people and therein lies the problem. This judge was doing the right thing for the people and will probably suffer for it. GovExec.com reader Posted August 17, 2005 7:07 AM
• I have had enough, I am getting out of the government. Actually I am going to retire while there still is a retirement system left in the government. If all of this new stuff goes into effect you can work for 18 or 19 years and get fired. All you will have left is your TSP. Out the back door with the garbage. The government, under the influence of King George must be proud of themselves. GovExec.com reader Posted August 17, 2005 7:24 AM