9/11 Bill's Provision on Homeland Security Unions Raises Questions of Its Purpose, Parentage

By Stephen Barr

Monday, September 27, 2004; Page B02

Call it the mystery provision.

A small section in the House Republicans' big bill to implement the 9/11 Commission's recommendations would make it easier for the president to exclude unions from representing "homeland security" employees.

But no one seems to know where the proposal came from or why it is needed.

The proposal, which had been kept secret while House Republican leaders devised their bill, was spotted by the National Treasury Employees Union shortly after GOP leaders began distributing their legislation late Friday. House committees will take up the bill for debate and amendment this week.

Colleen M. Kelley, the union's president, said the provision was unnecessary and unrelated to the bill's major purpose, which is a reorganization of the intelligence community aimed at strengthening the nation against terrorist attack.

"NTEU is opposed to this language, which we believe to be nothing more than a politically motivated, election-year tactic orchestrated by the administration and the House Republican leadership," Kelley said in a statement.

The proposal seems likely to renew controversy over the role of unions at the departments of Homeland Security and Defense, where Bush administration appointees are moving to curtail the role of unions and limit the workplace issues that can be brought to the negotiating table.

Two years ago, unions and their Democratic allies lost ground on labor rights to Republicans during the bitter congressional debate leading up to the creation of the Department of Homeland Security. A number of Republicans argued that unions thwarted agency efforts to deploy employees quickly and to discipline poor performers. Union leaders said such arguments were nonsense because agencies can override contracts during emergencies and can easily fire employees who jeopardize national security.

Unions also maintained that the president has always had broad power to remove the collective bargaining rights of any group of federal employees who perform duties related to national security.

In a telephone interview, Kelley said she did not know where the provision in the House version of the 9/11 bill came from. "No one is claiming authorship," she said.

John Feehery, spokesman for House Speaker J. Dennis Hastert (R-Ill.), referred questions about the provision to the House Government Reform Committee, which has jurisdiction over federal labor-management issues.

David Marin, the committee's chief spokesman, said he did not know the provision's origins. "We are digesting the language and its intent," he said.

The 9/11 bill calls for creating a new national intelligence director and a counterterrorism center, and would take other steps called for by the independent commission that investigated the Sept. 11, 2001, terrorist attacks.

Tucked deep in the 335-page bill is a two-paragraph provision that would amend one part of civil service law and repeal a section of the 2002 law that sought to smooth the transition of unionized employees into the new Department of Homeland Security.

Under civil service law, the president can issue executive orders prohibiting unions and collective bargaining in agencies in which employees are primarily engaged in intelligence, investigative and national security work.

The proposal in the 9/11 bill would add "homeland security" to the list of functions that the president can deem exempt from union representation.

The proposal also would abolish a portion of the Homeland Security Act, sponsored by Rep. Christopher Shays (R-Conn.), that attempted to reassure union members about their transfer into the homeland department. The Shays provision permitted union representation to continue for the employees except in cases where responsibilities "materially change." If the president opts to exclude unions at the department, the Shays provision requires him to give 10 days notice to Congress and explain why in writing.

If the provision in the 9/11 bill stands, it could muddle administration efforts to publish regulations overhauling the pay and personnel system at the Department of Homeland Security later this year.

Kelley said the issue of broadening the president's power to remove collective bargaining rights from homeland employees did not come up in her discussions with Homeland Secretary Tom Ridge.

"I have no idea how this plays into all the work we have been doing with them for the last 18 months," Kelley said.