Pentagon official optimistic about overturning labor ruling

The Pentagon's top personnel official said Tuesday that his department's battle to secure new collective bargaining rules is far from over, despite a final court ruling overturning the Homeland Security Department's parallel system.

David Chu, undersecretary of Defense for personnel and readiness, said he is hopeful an appellate court will rule in favor of the National Security Personnel System's labor rules. Recently, DHS lost its last avenue for appealing rulings against its planned labor relations reforms: The solicitor general's office let pass a deadline for filing a challenge at the Supreme Court.

"You might ask, well, if they lost, can we win?" Chu said. "The answer is, potentially yes. We have a different statute than Homeland Security does; many believe a stronger statute, [and] one that is more directed in terms of the outcome we are pursuing."

Chu, who made his remarks at a breakfast sponsored by Government Executive, also said the Pentagon won't stop even if it loses at the appellate court level.

"There is always the Supreme Court option," Chu said. "But there are a series of options you could consider, including, yes, going back to Congress and saying 'OK, now what do we do?'"

The department recently filed a 77-page opening brief in its appeal. This was followed by a 61-page union rebuttal. In contention is management's ability to override collective bargaining agreements for national security purposes, a decreased scope of bargaining and a new internal review board to decide labor-management disputes. The lower court judge threw out all of those provisions; the Pentagon wants them back.

"What's at stake here is, 'What does collective bargaining mean in the federal government?' " Chu said. "What the statute invited us to do, at least as we interpret it, is to give the secretary the last word in terms of collective bargaining processes. The unions obviously are opposed to that system. We think it's essential for national security."

A byproduct of the labor relations case is that bargaining unit employees cannot enter into the human resources portion of the personnel system, which includes broad paybands and performance-based pay raises.

"We'd like the courts to allow us to proceed to place the so-called bargaining unit employees under the system as well," Chu said. "That's really what's at issue in the courts."

By January, the Pentagon will have almost 80,000 nonbargaining unit employees working under these systems -- more, as Chu pointed out, than most civilian agencies. But without new labor rules, the department would have to negotiate with hundreds of local bargaining units to get the system in place for the rest, which would create a patchwork of rules.

"There is no way we think, as a practical matter, to have a unified personnel system -- which is the objective here -- if you have to bargain with 1,500 locals," Chu said.

The undersecretary used the case of required drug testing for Defense employees with security clearances as an example.

"You would think drug testing for security clearances would be a no-brainer," Chu said. "That is not true. We still have bargaining units where that has not been accepted."

The department will file one more reply brief to the District of Columbia appellate court and then wait for oral arguments to be scheduled. Chu said he doesn't expect a decision for several months.