Union weighs solo Supreme Court challenge to Defense personnel system

Despite recent legal setbacks, a union opposing the Defense Department's new personnel system is considering a solo effort to take its case to the Supreme Court.

The American Federation of Government Employees is weighing the pros and cons of appealing the case to the Supreme Court without the involvement of the eight other unions in the coalition that has pursued the case thus far. According to AFGE General Counsel Mark Roth, the union is currently intent on filing.

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

That rejection left the union coalition with only one option for judicial relief -- appealing to the Supreme Court.

But according to some unions in the coalition, that could bring unwanted consequences. If the high court were to rule against the unions, for example, it could set a broad precedent that could hinder the ability to negotiate in the federal sector, the groups noted.

Roth said AFGE is considering such a concern as it decides whether to file. He also cited concern that an unfavorable decision by the high court could "spill over" onto an appeals court decision that struck down the labor relations portions of the Homeland Security Department's new personnel system.

Roth indicated that the remaining eight coalition partners are not moving forward in the legal battle, largely because some are hoping to find relief legislatively. He cited the Senate version of the fiscal 2008 Defense authorization bill, which includes language that would exclude all blue-collar workers from NSPS.

"Not as many of the unions have the same stake," Roth said. "Although I think it's fair to say that the coalition is supportive of the activities to get NSPS eliminated, AFGE will be the only plaintiff going forward."

Last month, AFGE asked the appeals court and the Supreme Court to delay issuing the mandate from the May ruling, giving the union time to prepare a potential petition for Supreme Court review. Roth said both courts recently denied AFGE's requests for delay, though the appeals court has yet to issue the mandate. Once it is issued, the Pentagon has the authority to move forward with the challenged portions of the system, Roth said.

But Joyce Frank, a spokeswoman for NSPS, said Tuesday that the department currently has no plans to implement the adverse action, appeals and labor relations provisions of NSPS. "The department is proceeding to implement the human resources provisions of NSPS to an additional 90,000 nonbargaining unit employees in fiscal 2008," she added.

Meanwhile, Roth acknowledged that an appeal to the Supreme Court could prove difficult, largely because the court rarely accepts cases involving a government agency from a nongovernmental party. But based on the strong dissent from appeals judge David Tatel in the May ruling, as well as a lower court decision that struck down the labor relations portions of NSPS, Roth said he is optimistic.

Still, AFGE's primary goal is to handle the issue legislatively, Roth said. 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. Last month, the House approved a bipartisan spending bill amendment that would block funding for the labor relations portions of NSPS.

The union has until mid-November to file a Supreme Court appeal, Roth said, adding that it is likely that Congress will have finished any legislation concerning NSPS by then. "We have plenty of time to see if Congress handles the problem for us," he said.

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