Implementing major changes in the federal bureaucracy is always a major challenge.
When Congress gave the Department of Homeland Security the legislative authority to implement a new personnel system, some observers may have thought the major part of the battle was over. In reality, getting legislation passed to implement a new system is a big step but hardly the last one. The inevitable legal challenges will go over all aspects of the implementing legislation to see how one side or the other can secure a legal advantage in interpreting the law to their benefit.
The Court of Appeals for the DC Circuit has concluded that the labor relations portion of the new system does not meet the intent of Congress. In a nutshell, the Court decided that the new system would not ensure the ability of federal employee unions to engage in meaningful collective bargaining because the agency could nullify portions of the agreement at a later time. It also concluded that the new system did not allow bargaining on fundamental working conditions for agency employees. (NTEU et. al. vs. Dept. of Homeland Security and Office of Personnel Management, Court of Appeals for DC Circuit, No. 05-5436 (June 27, 2006)
When an appeals court decision starts off with a list of abbreviations and acronyms necessary to follow and understand the ruling, readers can assume this is a legal decision steeped in intricate bureaucratic rules and regulations. Welcome to the world of the federal labor relations program.
After untold hours of work and deliberation to create a new human resources system in DHS, it may be necessary to go back to the drawing board.
The Court also found that, while the agency was free to eliminate the Federal Labor Relations Authority (FLRA) from a role in the new structure, it went too far in defining the standards of review that would be used by the FLRA in reviewing DHS cases. "Nothing in the HSA [Homeland Security Act] allows DHS to disturb the operations of FLRA."
OPM Director Linda Springer issued a statement that was optimistic about the future of performance based management in the agency and said only that she was "disappointed in the ruling by the Court of Appeals affecting the labor provisions of the personnel system authorized by Congress in the Homeland Security Act."
It would not be surprising if there is an appeal of the issue to the US Supreme Court but there is no indication yet whether this option will be pursued.
No doubt, the legal and internal wrangling over the creation of a new labor relations and human resources system for DHS will continue for awhile. But for now, it looks as though implementing a labor relations program that resembled the earliest days of the labor relations program under an Executive Order will not happen anytime soon.