DHS told to revamp personnel rules

By Karen Rutzick

The Homeland Security Department's proposed personnel regulations do not provide adequate collective bargaining rights for employees, rendering the rules illegal, a judge decided late Friday night.

In her opinion, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia wrote that when Congress created DHS, it clearly required the agency to ensure collective bargaining rights, and the agency violated that requirement by not providing for a binding contract.

The regulations DHS proposed would have provided officials with a substantial caveat in all bargaining agreements: the right to issue a directive at any time that negates a prior agreement.

Collyer wrote that with this rule, "collective bargaining would be on quicksand" because any agreement could be invalidated the next day by a simple order. Although the regulations would have required the agency to "meet and negotiate in good faith," the judge found that protection inadequate.

"Under such circumstances, a deal is not a deal, a contract is not a contract, and the process of collective bargaining is a nullity," Collyer wrote.

This ruling comes as a result of a lawsuit brought by the National Treasury Employees Union and four other labor organizations on behalf of DHS employees. Collyer heard more than two hours of oral arguments from both sides on July 14. The agency was set to implement its labor relations regulations Monday.

The judgment affects the labor relations part of DHS' proposed regulations, and not the performance management element, which includes replacing the General Schedule system with a pay-for-performance system.

NTEU President Colleen Kelley said the judge's decision "validated our arguments that DHS and [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."

Kelley wrote a letter to DHS Secretary Michael Chertoff on Monday, saying this decision presents "a new opportunity" to develop a personnel system NTEU can stand by, and requested a meeting with the Secretary as soon as possible.

It is now up to DHS officials to either craft a new set of collective bargaining regulations, or to appeal the decision to a higher court. On Monday, DHS spokesman Larry Orluskie said department officials are evaluating the ruling's impact and considering the next steps. The department has 60 days to bring an appeal.

In addition to her decision regarding collective bargaining, Collyer also found that DHS' system "improperly interferes" with the roles of two labor authorities, the Federal Labor Relations Board and Merit Systems Protection Board.

The Federal Labor Relations Authority, which traditionally plays a fact-finding and adjudicatory role in labor disputes, would have been reduced to an appellate body, with a newly anointed Homeland Security Labor Relations Board taking over its prior duties for the agency. Collyers decided that DHS did not have authority to modify the FLRA's duties that dramatically, without clearer Congressional intent to do so.

As for the MSPB, the court struck down as unfair new standards by which the board could mitigate the penalty for employee misconduct. The proposed rules said that the MSPB could not modify the department's penalties unless the action is found to be "wholly without justification."

Collyer said this stringent criterion would "render an MSPB review almost a nullity and...effectively insulate DHS adverse actions from review."

In her ruling, however, Collyer did uphold DHS' ability to adopt offenses that call for mandatory removal, as well as the department's creation of the Homeland Security Labor Relations Board both of which the unions brought as part of their lawsuit. DHS officials now will have to decide how to employ the HSLRB without interfering with the mandate of the FLRA.

According to NTEU counsel, Collyer was appointed to her judgeship by President Bush and has an extensive labor relations background, including time served at the National Labor Relations Board.