The recent decision from the DC District Court knocking down a portion of the proposed labor relations program for the Department of Homeland Security has predictably received considerable press coverage.
Much of the press coverage follows along the lines of this quote from a Federal Times article: "This ruling appears to be a major blow to the Bush Administration’s efforts to dramatically shift the power balance between labor and management in the federal workplace."
NTEU has issued a press release that states the court decision "vindicates completely NTEU’s arguments that DHS and OPM far overstepped the bounds of authority given to them by Congress in the HSA…."
John Gage, president of AFGE, in talking to the Washington Post sees even more implications in the decision contending that Congress should step in and take away the authority to make widespread changes in the existing civil service structure.
Having met with senior officials of DHS, federal employee unions are understandably hopeful that the decision will lead to the agency reconsidering the structure of the new human resources system and to creating a structure that the unions will support. (By the way, for a much different view of the decision and its implications, read the commentary by former OPM Director, Don Devine, on this case.)
Anyone who has read the decision that has caused this controversy and press coverage may wonder what is going on. There is no doubt that the court’s decision found part of the new plan at the Department of Homeland Security to be a problem. But what in the decision would cause the agency to restructure the entire plan it has been working on and meeting on with the unions during the process?
As a practical matter, the guts of the agency’s new human resources system still stand intact. The biggest stumbling block is that the agency could just issue new regulations that would negate contract provisions agreed upon with unions representing agency employees. Moreover, the judge invited the agency to submit changes to the plan that would address this concern.
The major restrictions on bargaining with unions were not found in the decision as being illegal. The agency could move forward by making a relatively small change in its proposed new human resources system that would ensure that new regulations could not be issued to negate a negotiated collective bargaining agreement. The topics open to negotiation would still be much more restrictive than those in the Civil Service Reform Act of 1978.
So why is this decision a "major blow to the Bush administration’s efforts to dramatically shift the power between labor and management…."? And, even more importantly, why does this decision lead to the conclusion that the agency has "far overstepped (its) bounds or authority" or that Congress should rescind the authority of the agency to make major changes to the existing human resources structure in DHS?
If the decision were to stand after the legal dust has settled, the only changes brought about will probably be that the agency can’t unilaterally change what it has already agreed to do and there will be some changes in the appeals processes for some agency decision. But, by any measure, the new system will still have been a major change in the relative power of agency and management.
The puffery in the union press releases is understandable. They are playing a game of catch-up. If they can create in the press the impression that the proposed system has been torpedoed in court, the view will quickly spread to agency employees (many of whom are already apprehensive about the new system–probably for reasons other than those in this court decision). And political appointees in agencies are often among the first to waver when challenged. The possibility of a public defeat after taking on a challenge may look devastating to a political appointee wondering about future career prospects available upon leaving hir or her current political appointment.
In effect, the court decision itself does not appear to be a major stumbling block to implementing the new system in DHS. The judge may approve a modified system which would leave the major changes intact or the agency may appeal and may prevail in a higher court.
But the biggest question mark may ultimately be the willingness of the administration’s appointees to stand up to the press reports and criticism from the unions and their staunch defenders in Congress–neither of which are not going to go along wtih a new system that even closely resembles the system currently proposed for DHS. The reports of the meetings with the unions sound conciliatory. That is to be expected in a political situation. The unions were able to politely make their points and presumably show they want to be a meaningful part of the new system after having delivered the threats and bombast through the press. And there is little to be gained on the part of the political appointees to come across as harsh or unyielding in a public meeting.
Ultimately, the unions can be counted on to keep fighting the new system until it is essentially dropped or until their money runs out. As one experienced labor relations advisor who has observed the entire process noted with regard to how the process is playing out commented: the agency "may still demonstrate its ability to snatch defeat from the jaws of victory."