DHS collective bargaining loss likely to affect Pentagon’s similar plan

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."