Smoke, Mirrors and Changes to the Federal Civil Service Structure

The recent court decision on the proposed changes to the labor relations system in DHS has generated a lot of press and many comments and calls for change. While change may come, the decision does not support a conclusion that the proposed system for DHS is now dead in the water.

As most readers know, a court has ruled that a portion of the new personnel regulations for the Department of Homeland Security are invalid.

Various news reports, press releases and comments from readers on the new decision sometimes display elation and perhaps even giddiness over the decision. Some Democrats are hitting the Washington Post with their show of solidarity with their union supporters in declaring the entire proposed human resources system needs to be scrapped and developed from a new perspective.

And a couple of the large federal employee unions are expressing confidence that the proposal to take away the bargaining power of unions in government now needs to be changed and urging Congress to step in and rewrite the rules for both the Department of Homeland Security and the Department of Defense.

Certainly no one knows what Congress may do in the near future or whether there will be any reaction from Congress as a whole in response to the court’s decision.

But, as one would expect, many of the predictions are more a reflection of the wishful thinking of the person making the statement than an analysis of the decision. From the perspective of unions such as AFGE and NTEU, their best bet may be to issue numerous press releases, construe the decision in the best possible light, urge Congress to step in and scrap the existing system, and try to delay the new labor relations and human resources system as long as possible. They don’t have anything to lose and it might work. The worst that will happen is they get their name in the papers, attract more dues paying members, take credit for trying to stop the implementation of a system that their members don’t want, and try to increase political pressure on Congress to change a law that has already been passed. Any good politician would probably do the same thing.

From that perspective, their actions make perfect sense. But don’t confuse the smoke and mirrors with the actual court decision.

The decision is long, meticulous and a good overview of the new labor relations system in the Department of Homeland Security. Moreover, the unions are justified in taking credit for slowing down the system’s implementation.

But the decision doesn’t support the interpretation and giddiness being bandied about by some. Here’s why.

The vast majority of comments on the site and in other publications express concern about pay for performance and various aspects of the new human resources system. We have run articles on several of the most important aspects of the proposed HR system. By far, the largest number of comments concerned pay for performance. Some readers, especially union officials, were not happy about the proposed changes in labor relations as it would restrict bargaining rights, strip representation away from some employees and restrict appeal rights for those subject to personnel actions.

Most federal employees are not involved in bargaining with an agency. Most employees probably do not know a reserved management right from a permissive topic of bargaining and don’t want to know the difference. And very few federal employees are actually subject to a personnel action and will not be filing an appeal with the MSPB or any other agency.

But all federal employees get a paycheck and they want to preserve that check. That is their primary concern.

So what does this new decision say about pay for performance?

It doesn’t say anything. The decision is about the proposed labor relations system and the appeals process to be established in the Department of Homeland Security.

The judge effectively found that the system in DHS that would allow the Secretary of DHS to overturn a collective bargaining agreement was not collective bargaining in the sense the term is usually used in the labor relations arena. Most labor relations specialists would probably agree with her and, I suspect, the labor relations experts at DHS did not intend to have the new system be a collective bargaining process within the usual meaning of the term. As Judge Collyer observed, "The HR system essentially reduces collective bargaining to employee-specific terms affecting discipline, discharge and promotion." And that action, under the terms of the court’s decision, is not a problem as Congress gave the agency that authority.

No doubt the agency can also propose changes to the role of the Federal Labor Relations Authority and the Merit Systems Protection Board that are likely to meet the objections of the judge. Or, as noted by the Judge, the agency had the authority to create a system. The problem with some of the changes proposed by DHS is that the agency was changing the role of an independent agency without Congressional authority to do so.

But the judge did not say that the restrictions on bargaining were improper. She also invited the agency to submit a change that addressed her concerns.

I do not know how DHS will proceed. No doubt, a swarm of labor relations experts have looked over the decision and are evaluating all possible options. One option they are likely to consider is looking closely at the court’s decision, propose a change that will make any agreement reached with a union binding on the agency (assuming the agreement is consistent with law and existing regulations), and go back to the judge with these changes. This would not give the union any more bargaining rights than they have under the proposed regulations. Union contracts in DHS would still be largely within the control of the agency because of the various restrictions on bargaining that are in the proposed DHS system.

Or, as one experienced agency labor relations specialist observed, the union appears to have won a battle but lost the war.

The end result of the publicity surrounding this case may be that the changes DHS has to make are not going to change the proposed system in DHS anywhere near as much as some are hoping. For now, it appears that major changes will still be coming in DHS and these changes may still happen fairly soon.

The decision may provide a speaker’s stand for those that do not like the proposed changes to make a lot of noise. Those in Congress that did not like the system to begin with will not like it now. There is a good chance that those in Congress that thought the changes were a good idea will still support it. No thoughtful observer of the federal civil service system could have expected major changes to go through smoothly. Certainly these changes will not go smoothly and more decisions on other aspects of the changes in DHS and DoD will be coming. But this initial decision does not appear to change the overall outcome of the proposed changes in DHS or to alter the diminished role that unions will play in the large DHS bureaucracy.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47