"The [Human Resources] system does not lead to enforceable contracts
and thus fails to comply with the directions of Congress to ensure
employee collective-bargaining rights,"

http://www.defensenews.com/story.php?F=1044190&C=america

Posted 08/22/05 08:05    

Ruling Could Cripple DoD Personnel Plans
By TIM KAUFFMAN

A federal judge's ruling striking down significant parts of the U.S.
Department of Homeland Security's (DHS) new personnel system could
jeopardize similar reform efforts at the Department of Defense and
other agencies.

DHS attempts to alter how it bargains with unions, resolves labor
disputes and disciplines workers violated the 2002 law that allowed
the department to craft new workplace rules, U.S. District Judge
Rosemary Collyer said in an Aug. 12 decision.

The new DHS labor relations rules that Collyer struck down are
repeated almost verbatim in the Defense Department's proposed National
Security Personnel System (NSPS). This almost guarantees a court
challenge from the unions if the labor relations provisions are
included as expected in final DoD rules to be issued in early September.

"When they issue their final regulations, if they're anything like the
last draft they showed us, we will be in court that day," said John
Gage, national president for the American Federation of Government
Employees (AFGE).

The ruling appears to be a major blow to the Bush administration's
efforts to dramatically shift the power balance between labor and
management in the federal workplace.

The Homeland Security and Defense departments, which employ nearly
half of the 1.9 million civilian workers governmentwide, issued new
personnel rules this year that block unions from bargaining over such
workplace matters as deploying new technology, reassigning employees
and setting work schedules. The rules also circumvent third-party
appeals of labor disputes and disciplinary actions.

The judge's decision shouldn't impede the administration's plans to
roll out new pay and performance-appraisal systems at DHS or other
departments, however, since those systems weren't challenged in the
lawsuit.

Despite the judge's ruling, the Pentagon said it has no plans to
revisit the disputed sections of its system. "DoD plans to continue to
go forward with finalizing our regulations and our plans to implement
NSPS later this year," said Joyce Frank, spokeswoman for the NSPS
Program Executive Office.

AFGE, which represents workers at Homeland Security and Defense, will
be pressuring lawmakers to revisit the work-force reforms they
approved for both departments, Gage said.

"We hope Congress is going to take another look at this whole deal,
and I really think they should," he said. "Neither DHS nor DoD really
deserves the benefit of the doubt that Congress gave to them."

Impact on Homeland Security

The judge's ruling blocked DHS from rolling out its new labor
relations rules on Aug. 15, as it had planned.

The department has 60 days from the judge's ruling to appeal the
decision to the U.S. Court of Appeals for the Federal Circuit. DHS has
not decided whether it will appeal, spokesman Larry Orluskie said.

House Del. Eleanor Holmes Norton, D-D.C., urged department officials
to resist lengthy appeals and instead work on creating a system that
doesn't curtail collective bargaining rights.

"It is clear that the agency can adopt flexible standards to suit DHS'
important mission without destroying collective bargaining," Norton
said. "If these regulations were deemed urgent four years ago, then
the district court decision must be considered a road map on how to
proceed to create a valid process that respects collective bargaining
now."

Colleen Kelley, president of the National Treasury Employees Union,
which led the lawsuit against DHS, said the department should
re-evaluate not just the collective bargaining and appeals systems but
also the pay and performance management reforms, which weren't
challenged in the lawsuit.

"We're asking that they reconsider this entire sham. These regulations
as written are nothing more than that," she said. "The system is not
fair, it is not credible, it is not transparent, and those are
criteria that we had laid out from the very beginning."

At least one lawmaker agrees. Rep. Bennie Thompson, D-Miss., ranking
member on the House Homeland Security Committee, said the department's
planned performance-based pay system must be revisited in light of the
court's ruling.

Runs Roughshod

"This ruling sets new boundaries for those who have wanted to
dismantle the General Schedule system. They cannot set up a system in
the name of homeland or national security that runs roughshod over
workers' rights to representation and collective bargaining," Thompson
said.

Collyer said the department's overhauled labor-management rules
essentially would strip employees of their collective bargaining
rights, which Congress explicitly said must be preserved. She said the
right to engage in collective bargaining under the new DHS system
would be illusory, since the department could nullify any part of any
collective bargaining agreement at any time.

"The [Human Resources] system does not lead to enforceable contracts
and thus fails to comply with the directions of Congress to ensure
employee collective-bargaining rights," she said.

Collyer said the department also overstepped its authority by changing
the duties of the Federal Labor Relations Authority (FLRA), an
independent agency that conducts hearings and resolves complaints of
unfair labor practices.

DHS proposed creating an internal body appointed by the secretary to
conduct hearings and resolve complaints and limiting FLRA's role to
reviewing the internal body's decisions.

Likewise, Collyer said the department's attempt to limit the Merit
Systems Protection Board's ability to lessen penalties for
disciplinary actions violated Congress' requirement that employees
have a fair appeals process.

The department's new rules would have allowed the board to lessen a
disciplinary action against an employee only when the penalty is so
extreme as to be "wholly without justification" based on the conduct
or performance.

This standard, the judge ruled, would all but nullify the board's
statutory authority to reduce penalties and effectively shield
disciplinary actions from review. •

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