Judge rejects DHS attempt at revising personnel rules

By Karen Rutzick

A federal judge ruled Friday that the Homeland Security Department's labor relations reforms cannot go forward, despite an attempt by the department to remove portions of the proposal previously ruled illegal.

Rosemary Collyer, a judge for the U.S. District Court for the District of Columbia, told DHS that its revised labor relations scheme did not go far enough in providing collective bargaining rights--specifically binding contracts--for department employees.

In her original ruling, Collyer focused on the department's authority to declare negotiated contracts void at any time after completion. The Homeland Security Department removed that language from its revised regulations, but the judge remained unconvinced.

"The agencies' proposal falls short because it leaves open other avenues whereby DHS could unilaterally and without recourse disavow lawful contracts," Collyer wrote in her decision.

Chief among these avenues, according to the judge, is a clause in the regulations that allows DHS managers "to take whatever other actions may be necessary to carry out the department's mission."

In her August decision initially rendering parts of DHS' system invalid and halting its implementation, Collyer invited the government to submit a proposal severing the illegal portions from the rest of the regulations.

But instead of reworking the regulations to make a separation possible, Homeland Security officials asked Collyer to reconsider her prior decision on this point, emphasizing that Congress intended the department to have flexibility in carrying out its mission.

"To be sure, Congress made a judgment that it wanted DHS to have flexibility," Collyer said. "But not at the expense of ensuring that employees could engage in collective bargaining."

DHS also attempted to revise language relating to adverse actions. Collyer ruled in August that the regulations improperly assigned the Federal Labor Relations Authority to an appellate role. DHS' rules created a Homeland Security Labor Relations Board--with members appointed by the department's secretary--to handle initial labor-management disputes.

In the revised rules, DHS removed the FLRA's role entirely. Collyer agreed that this portion of the regulations is severable and said the change satisfied her concerns about improper use of the FLRA.

This is a moot point, however, because without proper collective bargaining provisions, there is nothing to dispute, Collyer ruled.

DHS successfully convinced Collyer that it would have gone ahead with implementing its regulations even without a separate appellate body, rather than keeping the current law, which is the legal standard for severability of regulations.

The judge noted in her ruling, however, "that it would be highly unusual, and perhaps even improvident, to render the HSLRB a procedural dead end in which employees would have uncertain appeal rights."

Collyer's ruling comes in response to a lawsuit brought by the National Treasury Employees Union, the American Federation of Government Employees and three other labor unions. The lawsuit addressed only the labor relations portion of DHS' personnel reforms, and not any classification or compensation issues, such as pay-for-performance.

"Obviously we're very pleased," said Ward Morrow, assistant general counsel for AFGE. "It was very illuminating for the judge to say maybe what needs to happen here is to go back and redo all of this. That's what we've been asking for from the beginning."

Despite the legal victory for the unions, AFGE lawyers said they will likely appeal parts of Collyer's August decision, including limits on the scope of bargaining, and the shortened time limits for employees to ask the Merit Systems Protection Board to mitigate penalties.

DHS has 60 days to appeal any of Collyer's decisions. In oral arguments last week, lawyers for the department asked the judge to make her decision on the revised proposal soon so they could consider the option of appealing if necessary.

The agency did not respond to e-mail or phone calls Friday to comment on the decision, or the likelihood of an appeal.

"DHS can appeal this decision, but trying to impose an unjust and illegal system is not the answer," said NTEU President Colleen Kelley. "At this point, any responsible employer would sit down with its employees and work this out. Barring that, NTEU will fight to the finish to protect the dedicated men and women who protect our country's ports and borders."