High court extends deadline for appeal of Defense personnel system

The U.S. Supreme Court has allotted a federal labor union more time to weigh an appeal against the Defense Department's new personnel system.

The American Federation of Government Employees now has until Jan. 7, 2008, to file an appeal with the high court challenging a lower court's ruling allowing implementation of the National Security Personnel System to go forward, AFGE General Counsel Mark Roth said. The extension, which was granted earlier this month, gives the labor group two additional months beyond its original Nov. 7 deadline.

In May, a panel of judges for the U.S. Court of Appeals for the District of Columbia ruled that under the 2004 law allowing NSPS, Defense has the authority to limit the collective bargaining rights of its civilian employees through November 2009. In August, the coalition's request for a full court review of that ruling was denied.

AFGE told Government Executive in September that it was weighing whether to appeal the case to the Supreme Court without the involvement of the eight other unions in the coalition that has pursued the case. Some unions were skeptical about an appeal, noting that an unfavorable ruling could set a broad precedent that could hinder unions' ability to negotiate in the federal sector.

Roth noted that AFGE is considering such concerns in its decision to appeal. But, he added, the Supreme Court's extension will allow AFGE to determine whether an appeal is even appropriate.

The union's primary goal has been to handle the issue legislatively. The House and Senate versions of the fiscal 2008 Defense authorization bill include provisions that would repeal the Pentagon's authority to limit collective bargaining. The bill, which is undergoing conference negotiations, is expected to be finished before the Thanksgiving recess.

"My understanding is the authorization bill is heading to conference and has language that would resolve AFGE's concerns about the court decision," Roth said. "If that occurs prior to Jan. 7, we will likely have no reason to file. If it does not happen, we will proceed with the petition."

President Bush issued a policy statement in May speaking against the House provisions of the bill, noting that he would veto the final legislation if they were included. Under the House provisions, "the process becomes so administratively burdensome to design and operate that the effect of the bill is, in essence, a total revocation of the flexibilities Congress granted the department," the president wrote.

Still, Roth said he was not concerned about a potential veto, largely because House and Senate negotiators have indicated that they were working hard to strike a compromise. While a full repeal of NSPS is out of question, Roth said, AFGE is hopeful that unions will regain the rights to bargain over the implementation, impact and certain portions of the system.

Conferees "have been in such intensive negotiations, and we're not going to end up with a total repeal of the system," Roth said. "Unless NSPS is repealed, I doubt [the president] would veto. Maybe I'm naïve, but I'm not worried."