Unions seek full court review of Defense personnel ruling

The unions are seeking a rehearing of a decision issued in May by a panel of judges of the U.S. Court of Appeals for the District of Columbia regarding the department's National Security Personnel System. The appeals judges found that the law creating the system grants the Defense Department temporary authority to curtail the collective bargaining rights of employees, reversing a lower court's ruling.

The petition asks the full appeals court to review what the unions see as discrepancies between the May NSPS decision and an earlier decision involving personnel rules at the Homeland Security Department. In that case, decided last June, a separate three-judge appeals panel upheld a lower court ruling that struck down large parts of DHS' new labor relations system.

"The NSPS appeals court decision runs completely contrary to existing case law," said Richard Brown, president of the National Federation of Federal Employees. "This decision allows the Secretary of Defense to define collective bargaining however he wants to, when collective bargaining is a very well-defined term of art."

The full appeals court has up to several months to make a decision on whether to accept the case. If the court denies the request, the unions have the option of appealing to the Supreme Court.

NFFE spokesman Randy Erwin said Tuesday that the coalition is unsure whether it would exercise this option. "There are positives and negatives toward that," he said. "It could be a moot point."

A provision in the version of the 2008 Defense authorization bill approved by the House in May would overhaul the Pentagon's implementation of the system, restoring employees' collective bargaining and appeal rights and requiring the department to bargain with unions before implementing pay for performance. The Senate Armed Services Committee approved similar language in late May.

"We have received the unions' petition for rehearing en banc and will await the decision of the court," said Joyce Frank, spokeswoman for NSPS. "At this time, the department has made no changes in its implementation of NSPS and next fiscal year will convert 90,000 non-bargaining unit employees to the NSPS Human Resources provisions."

According to the appeals court ruling, Defense's authority to limit employees' collective bargaining rights runs out in November 2009, unless Congress votes to extend the changes.

"It is our sincere hope that the full D.C. appeals court will rehear this case," Brown said. "Basic rights for over 800,000 Defense workers are on the line. This case deserves consideration from the entire court."