Internal board could spark new clash in DHS labor overhaul

The three appellate judges who ruled against the Homeland Security Department's proposed labor relations reforms in June -- and whose decision was made final when the government abandoned its last avenue for appeal last week -- left one opening that could become a sticking point in the second round of negotiations.

Judges Harry Edwards, A. Raymond Randolph and Thomas Griffith did not block the department from setting up an internal review board to replace the Federal Labor Relations Authority in handling disputes between labor and management.

In regulations for the new labor system, DHS had proposed that the Homeland Security Labor Relations Board's members be appointed -- and reappointed -- by the department's secretary. The aim of the internal board, department officials said, would be to speed adjudication time.

But union officials say that even though the judges did not rule out a board, it will be a major focus of discussions when the department redoes its labor relations proposal, as required now that the government passed up its chance for a Supreme Court appeal. DHS officials must enter into a meet-and-confer process with the unions over the shape of the revised system.

"There is no way we're going to agree to a management board," said Mark Roth, general counsel to the American Federation of Government Employees. "Hopefully they'll come to the recognition that you need a neutral board so employees have some faith in it. Anybody can set up a kangaroo court and win every case."

Larry Orluskie, a spokesman for DHS, said it will be largely up to newly installed Chief Human Capital Officer Marta Perez to determine the shape of the board, although it definitely won't form as early as expected. In the fiscal 2007 Homeland Security Department spending bill that cleared Congress late last week and was signed by President Bush Wednesday, Congress rejected the department's request for extra money to pay board members' salaries.

Joe Whitley, the department's first general counsel, who helped draft the regulations, defended the idea of the new board.

"That sort of review board in-house would make the process stronger -- more efficient, more responsive and more facile and easier, quicker," said Whitley, who is now a partner at the law firm of Alston & Bird. "But at no point was there any thought to 'How do we reduce the due process that employees should be getting?' "

Labor groups still are fighting the board's legality. The National Treasury Employees Union filed an amicus brief focusing on the board in a similar case against the labor relations proposal for the Defense Department, in which NTEU does not have any members. "Both [boards] would effectively insulate management decisions from outside review and both, therefore, are illegal," NTEU President Colleen Kelley said.

"The HSLRB and the [Defense Department's National Security Labor Relations Board] are very similar if not almost identical in terms of form -- how members are appointed, in terms of what they review," Defense union coalition lawyer Keith Bolek said. "Under one statute, if the entity is struck down, that decision could ultimately … challenge … the other."

Union officials say if they do not like the new DHS board's makeup, or any other aspects of how DHS decides to revise its labor relations plan, they are poised to sue again.

"We would hope that DHS reacts to the court's decision by working with the unions and employees to devise a system that complies with the law," said Gregory O'Duden, general counsel for NTEU. "Of course, if any future system does not meet that requirement, we're prepared to return to court."

Labor law professor Charles Craver of The George Washington University said DHS could appoint a board that is subservient to management, and thereby gain the same managerial power blocked by the June appellate ruling. DHS had tried to form a collective bargaining system that allowed the department's secretary to negate negotiated agreements after the fact.

"I'm sure they'll relitigate that issue," Craver said. "If [DHS officials] try to appoint a board that looks like it is nothing but an extension of the secretary, it won't meet the requirements."