DHS to move ahead with parts of personnel overhaul

By Brittany Ballenstedt

March 13, 2007

The Homeland Security Department informed union leaders last week that it plans to implement portions of its proposed personnel reforms, including those governing adverse actions and appeals.

In letters to the American Federation of Government Employees and the National Treasury Employees Union, DHS announced that certain parts of its personnel rules would apply to bargaining unit members "as soon as practicable."

Just a few weeks ago, DHS outlined plans to move slower on its controversial personnel overhaul, formerly known as MaxHR but now called the Human Capital Operational Plan.

Labor unions have long criticized the changes, arguing they would give managers too much power and infringe on the rights of agency employees. AFGE and NTEU led a successful lawsuit against some portions of the plan; last June, the U.S. Court of Appeals for the District of Columbia upheld a lower court's decision that portions of the rules illegally curtailed collective bargaining rights for employees by giving management the ability to cancel negotiated agreements after the fact.

DHS' newly proposed plan would implement the rules the appeals court did not strike down -- those dealing with adverse personnel actions and appeals of adverse actions -- as well as those covering performance management.

But AFGE President John Gage said that even though the courts did not rule the adverse actions and appeals portions illegal, the lower court rebuked them.

"Following a lawsuit over portions of MaxHR by AFGE and other unions, these adverse actions and appeals regulations were found to undermine the fundamental principles of fairness and due process for DHS employees," Gage said.

The lower court ruling, by U.S. District Judge Rosemary Collyer, said "the regulations put the thumbs of the agencies down hard on the scales of justice in [the agencies'] favor." Collyer imposed a stay on the rules, but the appeals court lifted the injunction, finding it premature because no live case existed. Still, the appeals court agreed with Collyer's basic conclusion regarding the lack of fairness, Gage said.

DHS spokesman Larry Orluskie noted the performance management aspect of the proposed rules should not be confused with pay for performance. Performance management, he said, is merely a process of linking employee goals with the overall mission of the agency.

Orluskie said pay for performance will remain a pilot project through 2008 for the department's employees who work in intelligence. "You can't tie an employee's pay to performance until you have a performance management system in place," he said.

NTEU President Colleen Kelley criticized DHS' plans, arguing that it is "sheer folly" for the department to move ahead on the regulations without seeking additional input from its employees.

"DHS management has made a series of poor decisions that have caused morale among its employees to plummet," Kelley said. "This will only add to that long list of harmful decisions."

According to NTEU, the proposed regulations include language that would deny employees a reasonable period to improve their work prior to suspension or removal for unacceptable performance, and would slant the process of challenging personnel practices at the Merit Systems Protection Board in favor of management.

But according to Orluskie, the unions' characterization is incorrect. He said the rules guarantee due process and take nothing away from the role of the MSPB. "It's all intended to increase morale and working conditions," Orluskie said.

He also said DHS sent the letters to unions to notify them that the department planned to move forward on the personnel rules in accordance with union agreements and to give unions an opportunity to respond. "It doesn't change anything for employees overnight," he said. "DHS will continue to abide by all bargaining unit agreements and will continue to bargain changes with the unions."

Kelley said Monday that NTEU will demand that DHS bargain with the union before implementing any of the rules.

"The only clear and effective way forward for this agency, in terms of its personnel policies, is by working with employees and their representatives," Kelley said. "If the agency will work with us in a good-faith effort, NTEU will work to see that it accomplishes those ends."

By Brittany Ballenstedt

March 13, 2007