Thursday marked a deadline for DHS to file a status report with the U.S. District Court for the District of Columbia detailing its plans to either revise or abandon proposed labor relations rules under its Human Capital Operational Plan. The rules were enjoined by an appeals court in June 2006.
"We can't do anything," a DHS official said Wednesday. "Even if we wanted to move forward, we don't have the money to do it."
A fiscal 2008 omnibus spending bill signed into law in December 2007 provides zero funding for DHS' personnel plan, essentially barring the department from implementing key elements of the system, including labor relations. The bill grants the agency $10 million to turn around the results of a 2006 federal workforce survey, which rated the department at or near the bottom in leadership, performance management and job satisfaction.
The lack of funding for HCOP is largely a result of criticism from lawmakers and federal labor unions that the personnel plan was a major contributor to plummeting employee morale.
The status report filed in the court Thursday indicates that DHS and the Office of Personnel Management "have made no decision as to whether to revise or abandon these regulations." The filing referenced language in the omnibus bill that limited funds for the system or any subsequent system until pending litigation is resolved.
The U.S. Court of Appeals for the District of Columbia struck down the labor relations program in June 2006, ruling that it would illegally curtail collective bargaining rights for employees by giving management the ability to cancel negotiated agreements after the fact. The ruling unanimously upheld and even broadened the district court's decision to strike down large parts of the personnel plan.
The decision to scrap the rules marks another victory for federal labor unions, which have long called on Homeland Security to scrap the personnel plan and place collective bargaining back under general federal labor law.
"Congress gave DHS authority to revise the personnel system while retaining employee rights, but DHS overstepped that authority by trampling on employee rights," said Colleen Kelley, president of the National Treasury Employees Union. "The courts agreed with NTEU that DHS' plan was illegal."
Kelley added that DHS also must drop its efforts to impose on employees any aspects of the personnel plan, including regulations concerning due process and appeal rights and pay for performance. While the courts did not rule the adverse actions and appeals portions of the system illegal, the lower court rebuked them.
Rather than moving forward with HCOP, Kelley said, DHS should focus on addressing the serious morale problems affecting its mission. Fixing these problems, which means respecting employees and showing a greater willingness to work with employee representatives, should be the department's priority, she said.