The coalition of unions that had asked the full U.S. Court of Appeals for the District of Columbia to review a May ruling in favor of the Defense Department will now take the case to the Supreme Court, said Joe Goldberg, lead attorney for the group. The unions represent more than half the civilian employees affected by personnel changes at the Pentagon.
The coalition also will ask that the appeals court delay issuing the mandate that will accompany Friday's decision not to rehear the case, a maneuver that would essentially give the unions more time to work out their next move.
The National Federation of Federal Employees -- one of the unions involved in the case - expressed disappointment in the appeals court's move. "We feel this case meets all the criteria for a rehearing, and choosing not to grant it is a disservice to the 750,000 Defense workers who deserve a fair shake on this all-important matter," said Richard Brown, president of NFFE.
The full appeals court's refusal to review the case lets stand the May ruling by a panel of judges that the Defense Department has the authority to limit employees' collective bargaining rights until 2009, at which time the agency must revert to the labor practices outlined in the 1978 Civil Service Reform Act.
The Defense Department's privilege has come into play as the agency works to implement the National Security Personnel System, which, in addition to the collective bargaining provisions, seeks to tie pay more closely to job performance. Unions have criticized the new system, saying it promotes hiring decisions based on ideology rather than performance.
"[NSPS] is costing taxpayers money needlessly to implement a personnel policy that has nothing to do with performance," said Matt Biggs, legislative director for the International Federation of Professional and Technical Engineers, one of the unions in the coalition. In addition to legal action, the unions have pushed Congress to block the personnel reforms. The House earlier this month approved a bipartisan spending bill amendment that would protect the collective bargaining and appeal rights of Defense employees.
Language to reform or repeal NSPS also has been included in House and Senate versions of the 2008 Defense authorization bills. In May, the House voted to repeal the existing authority of Defense to move forward on the labor relations portions. So far, the full Senate has failed to move on its version of the authorization bill, which would permit the Pentagon to go forward with personnel reforms, as long as the system is consistent with existing federal labor relations law.
"We're very optimistic that NSPS as we know it right now is going to be fixed," Biggs said. "We have bipartisan support."
Lt. Col. Les' Melnyk, a Defense Department spokesman, said that while it is against agency policy to comment on open legal proceedings, Defense supports the personnel overhaul.
"NSPS is what's needed to reform the civilian workforce for the war on terror," Melnyk said. He said there are "protections under the system" for employees' bargaining rights.