Drawing the Line at DHS

The ruling against Homeland Security's reforms could have a ripple effect.

U.S. District Court for the District of Columbia Judge Rosemary M. Collyer ruled in mid-August that elements of the Homeland Security Department's personnel reform plan are illegal. Her decision didn't simply block DHS reforms, it undermined the model for personnel system changes governmentwide.

After two years of careful crafting, DHS, along with the Office of Personnel Management, proudly unveiled in January the final plan to revamp personnel management, including labor relations. But Collyer ruled that the plan failed to meet the department's obligation to ensure collective bargaining. "Negotiations pursuant to [the plan's] terms are illusory," she wrote. "The secretary retains numerous avenues by which s/he can unilaterally declare contract terms null and void, without prior notice to the unions or employees and without bargaining or recourse."

On Aug. 15, DHS spokesman Larry Orluskie said department officials were evaluating the ruling's impact and considering next steps. DHS has 60 days to appeal.

Until Collyer's decision, other agencies were looking to DHS as a model. The Defense Department latched onto DHS' example in drafting its own plan for changes, crowing that the Defense system was "extensively informed by the DHS experience." Defense officials said they "adopted many of the concepts and approaches and even much of the specific language set forth in the DHS regulations" in their draft plan, released in February.

They weren't alone. In July, officials at the Office of Management and Budget released a draft of the Working for America Act, which would extend similar reforms to all domestic agencies. This despite the fact that Defense and Homeland Security sought managerial flexibility specifically so they could act fast to prevent and respond to terrorism, a requirement other agencies don't face.

After releasing the draft legislation, OMB Deputy Director for Management Clay Johnson told reporters it would differ markedly from the DHS plan, especially when it came to labor relations. He said it was wrong to suggest the law simply would extend the DHS and Defense plans governmentwide. The act's changes to current collective bargaining arrangements are "relatively minor," Johnson says, because agencies don't have the same need for urgent action as DHS and Defense.

While the DHS and Defense proposals drop the requirement to bargain with unions over binding personnel rules and work assignment procedures, the proposed legislation retains it. However, when a need arises to "act quickly to prepare for or prevent an emergency," domestic agencies would not have to confer with unions.

Unions are skeptical. In a press release issued in response to OMB's proposal, National Treasury Employees Union President Colleen M. Kelley said the draft bill would strip away rights to collective bargaining and employee appeals.

But neither Collyer's decision nor the unions' objections appear to faze OMB. "We're still studying the [DHS] ruling, but it largely deals with collective bargaining issues, which the Working for America Act does not impact to any degree," Johnson says. "Instead, the WFAA proposal seeks to require agencies to better manage, develop and reward employees."

Mary Lacey, executive officer of the National Security Personnel System program, says regardless of Collyer's ruling, Defense still plans to finalize and implement NSPS later this year.

The two systems are not identical. Defense officials say they have broken new ground in their plan. American Federation of Government Employees General Counsel Mark D. Roth agrees-sort of. "They basically just copied the DHS stuff and threw in some stuff that's worse," he says.

"Even though they say it is not the same, there are too many parallels when you lay it side by side," Kelley said during a press conference after Collyer ruled. She added that Defense and other agencies now will have to step back from reforms based on DHS regulations.

The Pentagon plan differs distinctly from DHS' proposal on arbitration. In the DHS system, employees can go directly to court to appeal arbitration rulings. NSPS dilutes the impact of those decisions. Under the Defense plan, employees first must appeal to the Merit Systems Protection Board before going to court.

The Pentagon already had pulled back from one of the areas where Collyer found DHS had erred. Under the DHS plan, MSPB could not mitigate disciplinary actions unless they were found to be "wholly without justification." The NSPS draft originally contained that clause, too, but AFGE's Roth says the Pentagon returned to the current standard-allowing the board to reduce penalties it finds unreasonably harsh-even before Collyer ruled.

AFGE President John Gage says that unless NSPS drastically changes, the union almost certainly will challenge the final rules. U.S. District Judge Emmet Sullivan probably will handle the case, according to Roth. Sullivan is presiding over the union's lawsuit against Defense's process in creating NSPS. Roth says AFGE will amend that suit to cover the final regulations.

Both NSPS and Working for America could change. Defense officials have said they won't publish their final regulations until sometime this fall. OMB is waiting until September to introduce its legislation.

Illegal Provisions

On Aug. 12, U.S. District Judge Rosemary M. Collyer struck down several provisions in the Homeland Security Department's personnel system. Here's how they are handled by DHS, the Defense Department's draft reform plan, and draft legislation covering other domestic agencies.

Provisions Ruled Illegal Homeland Security Defense Domestic Agencies
Power to override collective bargaining agreements Management retains authority to void any deal Same as DHS Management gets no override authority
Role of the Federal Labor Relations Authority FLRA role is relegated to an appellate body; DHS creates own board appointed by the secretary Same as DHS Retains existing role
Ability of Merit Systems Protection Board to mitigate penalties MSPB can mitigate penalty only if it is "wholly without justification" Retains current law MSPB can mitigate penalty , but must give agency mission primary consideration
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