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The push for governmentwide personnel reform will not be affected by last weekend's court ruling that parts of the Homeland Security Department's similar plan are illegal, according to Office of Management and Budget officials.

Judge Rosemary Collyer of the U.S. District Court for the District of Columbia found that the DHS plan did not provide adequate collective bargaining capacity for employees.

Collyer also ruled that the agency illegally altered the role of the Federal Labor Relations Authority, instead creating its own Homeland Security Labor Relations Board for handling labor disputes and using the FLRA primarily as an appeals body. Additionally, the judge found the agency's proposed standard--to be used by the Merit Systems Protection Board in deciding whether or not to mitigate employee penalties--to be too harsh.

The Aug. 12 ruling came as a result of a lawsuit brought by the National Treasury Employees Union and four other labor organizations on behalf of DHS employees.

However, while DHS officials now must either redesign the labor relations portion of their proposal or appeal the decision, Clay Johnson, OMB's deputy director for management, said his plan for domestic agencies, called the Working for America Act, won't need the same adjustments.

"We're still studying the ruling, but it largely deals with collective bargaining issues, which the Working for America Act does not impact to any degree," Johnson said. "Instead, the WFAA proposal seeks to require agencies to better manage, develop and reward employees."

Some skeptics disagree with Johnson's assertion that his proposal will not have an impact on collective bargaining at all. Following the release of the WFAA draft, National Treasury Employees Union President Colleen Kelley said that "the system fails to ensure a fair and objective compensation system and goes well beyond establishing a so-called pay-for-performance system to stripping collective bargaining rights and employee appeal rights."

In its own supplemental documents, which OMB released along with the draft proposal, the agency pointed out some changes to labor relations policies.

For one, OMB says its new system would not require bargaining with unions if it becomes necessary to "act quickly to prepare for or prevent an emergency," while the current system does require bargaining.

In the draft proposal, OMB defines emergency as "an actual or potential situation requiring immediate action to carry out critical or essential agency functions, including, but not limited to, any situation involving or potentially involving: an adverse effect on agency resources; an increase in agency workload due to unforeseeable events; changed missions requirements imposed on the agency by external authorities, or any budgetary exigency caused in whole or in part by authorities external to the agency."

That definition leaves open the possibility for "emergency" to be redefined by management to include additional circumstances in the future.

Additionally, while the draft does not adopt Homeland Security's stringent MSPB standard, which required the board to find an employee's penalty to be "wholly without justification" in order to mitigate it, it does tinker with MSPB rules.

OMB's supplemental materials say that while the current system allows the MSPB to "mitigate penalty based on lesser factors than mission impact," this new plan would allow the board to "mitigate penalty, but must give impact on agency mission primary consideration."

OMB's plan does, however, primarily focus on creating a pay-for-performance system. DHS' own such system was not affected by the judge's ruling.

Johnson told reporters after releasing the WFAA draft that it does not simply take the DHS system and apply it governmentwide, because the domestic agencies have a different mission.

"We don't have the same need for urgent action in the domestic agencies," Johnson said.

A DHS spokesman said the agency is reviewing the ruling and deciding whether or not to appeal. OMB said it will introduce its legislation in Congress in the fall.

COMMENTS

• The suggestion that the “Working for America Act” does not impact collective bargaining issues to any great degree is at best misleading. In addition to the practical elimination of status quo ante remedies and their power to deter unlawful conduct and the expansion of emergency exigency further limiting the scope of bargaining in the federal sector, many of the structural criticisms of the HSLRB at DHS set forth by Judge Collyer apply to the changes proposed for the FLRA in the WFAA. The FLRA was modeled on the National Labor Relations Board. The legislation creating the NLRB speaks to a five-member Board who are members of both political parties. The three member Authority is also made up of members of both political parties. The word Authority in the FSLMRS was not a legislative whim and the replacement of that word with Chairman is no minor change. The proposed changes in the WFAA for the FLRA concentrates all power in a single Chairman rather than a collegial, consultative three-member Authority with the Chairman as CEO. The Taft-Hartley Act implemented the concept of an independent General Counsel at the Board rather than having the Board serve as investigator, judge, and jury. The concentration of power at the FLRA in the Chairman is counterintuitive to the concept of an independent General Counsel and a collegial, consultative body. The FLRA, tasked with protecting collective bargaining and democracy in the work place in the federal government, is very much in danger of loosing its own independent and democratic nature. WFAA takes the FLRA away from the model established with the creation of the NLRB, which has served America well since the 1930s to promote industrial peace and protect democracy in the work place, and moves it as closely to the DHS and HSLRB model as is possible without straining the identity of the FLRA past any remaining credibility. John Doe Posted August 31, 2005 9:49 PM
• I will say this the day they go to pay for performance I will do little if anything and just enough to stay employed. This administration puts scrooge to shame. Right now I take on so much more than my job requires that I live for the challenge, but there is a limit to what I will take. Also lets pay Bush on the same grounds after his last poll score I say he should pay us. GovExec.com reader Posted August 18, 2005 9:40 PM
• That's Chutzpah in the positive sense-- loosely translated as "moxie", "guts", a willingness to tell the government it is wrong. And why is this comment coming from OMB-- maybe because OPM- the premier federal HR agency is owned, and operated by the accountants at OMB. It's so nice to see that the head HR professional and CHCO for the entire federal government at OPM is a CFO from OMB. Here is my advice to the administration-- just close OPM and create a new division within OMB called Human Capital management and have it report many levels down through the facilities and operations management because to this administration it is quite obvious that federal employees rank somewhere between computers and desk furniture. HR Specialist GovExec.com reader Posted August 18, 2005 8:28 AM