DHS asks judge to lift ban on some sections of labor relations rules

The Homeland Security Department asked a judge Friday to permit parts of its new labor relations regulations to go forward after she halted their implementation earlier this month.

U.S. District Judge Rosemary Collyer stopped implementation of DHS' new labor relations rules on Aug. 12, three days before they were scheduled to go into effect. Collyer said the regulations failed to provide adequate collective bargaining for employees. She ruled that the system did not afford binding contracts, in large part because DHS reserved the right to issue directives that voided contracts at any time.

Collyer also judged that the rules overstepped the agency's authority by reducing the the Federal Labor Relations Authority, which traditionally plays a fact-finding and adjudicatory role in labor disputes, to an appellate body. The rules would create a Homeland Security Labor Relations Board to take over many of the FLRA's prior duties.

After finding that portions of the DHS rules were illegal, the judge halted implementation of the entire set of labor relations regulations. However, in her opinion, Collyer gave DHS the option of submitting a plan to implement sections of the proposed regulations, leaving out the portions she had found unacceptable.

The ruling did not affect DHS' new personnel rules outside of labor relations, including the plan to implement a pay-for-performance system in place of the General Schedule.

DHS spokesman Larry Orluskie said the agency's new proposal "seeks the startup of the Homeland Security Labor Relations Board and the rollout of important management rights and other labor relations flexibilities."

In the memorandum in support of their motion, DHS asked to move forward with its plan to prohibit collective bargaining on subjects such as "numbers, types and grades of employees assigned to a work project." DHS also sought the power to declare that the authority to "hire, assign, direct, layoff and retain employees" as well as to "assign work" also are nonnegotiable.

The agency argued that even if the court ruled collective bargaining must lead to binding contracts, that ruling applies only to areas that are subject to collective bargaining in the first place.

DHS asked Collyer to allow the establishment of the HSLRB, and to allow the FLRA to perform some supervisory functions laid out in the proposed rules, such as conducting elections to determine which unions will represent employees.

DHS said the portions which Collyer ruled illegal are realistically "severable from the remainder of the regulation."

Colleen Kelley, president of the National Treasury Employees Union, which, along with four other unions, brought the initial lawsuit against the DHS rules, said the union would "vigorously oppose" the request.

"NTEU believes that all aspects of the personnel system challenged in the case are inextricably intertwined with one another," Kelley said in a statement. "Unless the entire system is overhauled to ensure collective bargaining as Congress required, DHS cannot lawfully move forward."

DHS asked the judge to rule on its submission by Oct. 7, so that the agency can still appeal the overall ruling within the 60-day time period.