Ruling on a union lawsuit, a federal district court judge told the U.S. Department of Homeland Security (DHS) to revise some of its new labor-management relations rules that unions said were unfair and nullified federal employees' right to bargain collectively.
Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia said "significant aspects" of the new DHS personnel regulations "fail to conform to the express dictates of the Homeland Security Act" passed by Congress in 2002.
The court ruling on the new personnel rules for some 180,000 civilian DHS employees is seen as dealing a blow to the nearly identical plan devised by the Department of Defense (DOD). Unions pledged to also file suit against the proposed DOD rules if they are not amended.
The Bush administration has indicated repeatedly that it intends to use the DHS and DOD plans as a model to impose on most other government agencies.
The lawsuit against the DHS rules, which were scheduled to take effect Aug. 15, was filed by the National Treasury Employees Union (NTEU), the American Federation of Government Employees, and three other unions. DHS has 60 days to appeal the ruling.
NTEU Pres. Colleen Kelley said the decision "validated our arguments that DHS and OPM [the Office of Personnel Management] far overstepped their boundaries and they abused the discretion given to them by Congress when they created the Department of Homeland Security."
George Lord, secretary-treasurer of Washington 538C, praised the decision. The local represents GCC/IBT members at Defense Automated Production Services in the DOD and in the federal Government Printing Office (GPO), which is a congressional agency.
The proposed DHS and DOD personnel rules would "basically turn the federal system back into the old corrupt patronage system that it was before the civil service system was created" more than a century ago, Lord said. "What happened then was people got government jobs based on their political affiliation and the old wink and nod," he said.
"Most of the things we bargain over now we would not be allowed to bargain over under the proposed rules," Lord said. "Worse yet, except for equal employment opportunity issues, there would be no appeal system. Things could only be appealed internally. If you can only get your day in court internally, then you're going to fail 99 percent of the time because the people who are going to hear these types of complaints are appointed by the agency head," he said.
The Homeland Security Act established DHS through the consolidation of some 22 federal agencies. The Bush administration sought–and Congress granted after a rancorous debate–the right for the new department to create its own "flexible" personnel rules in the name of national security, even though most of DHS's civilian employees have little to do with national security issues.
Congress later granted similar rights to the Department of Defense in the National Defense Reauthorization Act.
Under the personnel rules developed by DHS, employees no longer have the right to bargain over such issues as the introduction of new technology, employee assignments, and work schedules. The new regulations provided management a broad right to override union contract provisions on issues that remain subject to bargaining.
In addition, the plan established a new internal labor relations board to review employee complaints. The Federal Labor Relations Authority, an independent agency which now investigates and rules on unfair labor practice issues for federal employees, would have been limited to reviewing the internal board's decisions. The DHS rules also limited the Merit Systems Protection Board's current right to review and overturn or lessen penalties related to disciplinary actions to only those cases deemed "wholly without justification" based on conduct or performance.
Judge Collyer, a Bush appointee who served as general counsel of the National Labor Relations Board from 1984 to 1989, said Congress directed DHS to protect employees' collective bargaining rights. But she said the agency ignored that mandate when it usurped the right to negate a collective bargaining provision at any time.
Noting that, under this condition "collective bargaining would be on quicksand," Collyer wrote: "Under such circumstances, a deal is not a deal, a contract is not a contract, and the process of collective bargaining is a nullity."
Although Collyer said DHS has the right to establish its own internal review board, she said the agency does not have the right to redefine the roles of the Federal Labor Relations Authority and the Merit Systems Protection Board that were established by Congress.
New pay system
The lawsuit and court ruling did not address the Bush administration's plan to replace federal civilian workers' current General Schedule (GS) pay system of annual across-the-board cost-of-living increases approved by Congress and in-grade step increases based on years of service and performance with a pay system that ties any pay increases to performance as judged by management.
Lord said he finds the proposed pay system fishy because, despite Bush administration claims that it wants to reward good workers, there has been an award system in place for 50 years in the federal government.
Supervisors currently can recommend giving outstanding workers monetary awards over and above cost-of-living increases. However, Lord said, most agencies have not been applying for these raises for their outstanding workers because most agencies have suffered budget cuts and there is no money for the awards.
Lord noted that the Bush administration's new pay system would affect the base pay of workers who do not get cost-of-living increases. Further, some workers could get all or some of the increase while others do not, so there would be employees doing the same job who are getting different rates of pay.
"In one breath, they say they can't get talented people without changes in the system," Lord said. "In the other breath, they don't want to reward them. I think it's going to create a lot of litigation," Lord said., noting that GPO workers are rare among federal employees because they are permitted to negotiate wage rates.
According to a report by the Congressional Research Service, the overall pay scales for workers in General Schedule positions increased by 357 percent since 1969, while consumer prices rose 410 percent over the same period. Average private sector salaries increased by 522 percent since 1969, according to the report.
Once the administration imposes the new system on the majority of federal employees who work in the defense agencies, Lord said, "it would be nothing to impose it on all federal employees."
Lord said that, despite its rationalizations about the new personnel rules and pay system, the Bush administration's bottom line is "they want to dismantle the civil service system so they can outsource as much government work as possible. That's who they owe–business. That's why they want to farm out as much government work as they can to business," he said.
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