An appeal challenging a personnel action taken by an agency against a federal employee can take years to resolve. From that reference point, one could anticipate that making major changes to the basic civil service structure will take longer than it did for America and its allies to win World War II. Those who anticipate a long, tough road before anyone knows how the revamped civil structure will look will not be disappointed.
The first round was the political battle within the administration and Congress. Not that these ever end, but Congress did pass legislation enabling major changes to be made to the civil service structure. The process of deciding how these changes will look in practice have been going on for a couple of years now.
The next round(s) are likely to come in the courts. Here is one of the first ones.
The National Treasury Employees Union filed a challenge in court against implementation of the new HR system for the Department of Homeland Security. This round goes to the union scored as it was able to gain an injunction against the collective bargaining portion of the regulations.
As might be expected in this complex process, both sides won some and lost some in this detailed ruling that exhaustively examines the new regulations, the law that authorized them, and the backdrop of laws that created the Federal Labor Relations Authority and the Merit Systems Protection Board. NTEU v. Chertoff, Secretary, Department of Homeland Security, U. S. District Court for the District of Columbia, Civil Action No. 05-201 (RMC), August 12, 2005. The order issued by the Judge is here.
The Homeland Security Act of 2002 was passed in the aftermath of the 9/11 terrorist attacks against the United States. In creating the new department and combining into it 22 whole existing agencies and parts of several other agencies, Congress was intent on fashioning a “homeland security establishment” that would be more effective in the war on terrorism.
The devil is always in the details. In this case the details were left to the new Department to sort out. In a rather extraordinary indictment of the existing federal HR system, the law permitted the new Department, in conjunction with the Office of Personnel Management, to develop a separate HR management system without regard to many of the constraints imposed by the existing civil service laws.
Congress spelled out only very general requirements for the new HR system, including that it ensure the ability of employees to bargain collectively. After the new system was fashioned and regulations written—following extensive consultation with national labor unions—it became apparent that the unions would never actually agree to the new system. Therefore, DHS published final regulations on February 1, 2005 and announced that the new system would take effect August 1, 2005.
NTEU, joined by several other unions, challenged the new regulations in federal court and sought an injunction. A few trees were sacrificed as legal briefs flew back and forth, and a month ago the judge asked the DHS to voluntarily hold off on implementing the rules for 30 days until she could rule on the injunction. They did and the judge delivered on her promised time table.
As a member of the College of Labor and Employment Lawyers and a former General Counsel of the NLRB, Judge Rosemary Collyer is no stranger to labor relations law. In her opinion, she plods meticulously through the various laws and legal arguments.
The key issue in Count 1 challenging the new regulations revolved around bargaining rights. Judge Collyer concluded that the re-vamped bargaining rights do not cut it:
“The Regulations fail because any collective bargaining negotiations pursuant to its terms are illusory: the Secretary retains numerous avenues by which s/he can unilaterally declare contract terms null and void, without prior notice to the Unions or employees and without bargaining or recourse. “(P. 35)
On the other hand, the Court sided with DHS by giving deference to the limited scope of bargaining set out under the new regulations:
The Plaintiff Unions also challenge the limited scope of bargaining allowed under the new HR System. They note that the Regulations eliminate all bargaining over what were formerly “permissive” subjects – the Regulations actually prohibit bargaining over such topics as numbers, types, and grades of employees assigned to any subdivision or work project; tours of duty; technology; and means and methods of doing work. Compare 5 C.F.R. § 9701.511(a)(2) with 5 U.S.C. § 7106(b)(1). Further, the Regulations would permit DHS to avoid bargaining with the Unions over the procedures management will observe when exercising its management rights, reducing their involvement to non-binding meetings to “confer.” While the Unions’ observations are correct, the Court finds that Congress gave the Agencies the authority to ignore the provisions of Chapter 71 and to establish new metes and bounds for collective bargaining at DHS. The HR System essentially reduces collective bargaining to employee-specific terms affecting discipline, discharge and promotion. “Appropriate arrangements” for employees impacted by the exercise of a management right would be negotiated only after the Department takes action and would be severely limited to such matters as personal hardships and safety measures, or reimbursement of out-of-pocket expenses. (p. 40)
The Court also turned away the union’s challenge to establishment of the Homeland Security Labor Relations Board (HSLRBP), again giving deference to the agency on this point. (p. 42)
Count 2 of the complaint challenged the attempt to limit the role of the Federal Labor Relations Authority in matters affecting the new DHS. The court agreed with the union in that the reduced role of FLRA would “fundamentally change the obligations of an independent agency” (p. 45). Interestingly, the court points out that the DHS was not required to use FLRA: “in fact, they could have waived Chapter 71 entirely…the Court is convinced that they cannot commandeer the resources of an independent agency and thereby fundamentally transform its functions, absent a clearer indication of congressional intent.”
It could be interesting to see what DHS does with this when it goes back to the drawing board!
Count 3 of the complaint challenged the curtailment of MSPB’s ability to mitigate the penalty in employee misconduct cases. The Court sided with the union on this one and refused afford DHS deference on this part of the regulation. (p. 52)
Finally, Count 4 challenged the restrictions placed on MSPB procedures in handling appeals. At stake here is whether DHS can insert into the MSPB process a Mandatory Removal Panel, shorten the time for appeal, limit discovery, and provide a summary judgment procedure when there are not facts in dispute. Score a victory for DHS on this one. The court concluded these changes were permissible.
What will the final human resources system look like when the dust settles? No one knows and, based on the litigation that ensued when the Civil Service Reform Act of 1978 was passed, it will take a few years. On the other hand, the changes are moving forward.
The decision also noted that "Should the agencies wish to submit an order…in a manner otherwise comporting with this memorandum, the court would be willing to entertain it."
There is no official reaction from the agency to the opinion. An appeal of the decision is a strong possibility and the agency may also choose to try and work within the invitation by the judge to "submit an order" that they believe will meet her objections. In short: The first court battle goes to the union after a string of losses in the earlier stages. No one can yet predict how the legal and political war will finally play out.