Appeals Court Upholds Rejection of Homeland Security Personnel System

By Stephen Losey
The Federal Times

Tuesday 27 June 2006

The Homeland Security Department's new personnel system violates laws guaranteeing workers the right to collectively bargain with their employers over workplace matters, a federal appeals court ruled June 27.

The ruling likely will force the department to rewrite the labor relations sections of its new personnel rules, some observers say.

As part of its new rulebook for hiring, paying, appraising and managing employees, Homeland Security sought to include rules that would allow department managers to overturn agreements with employee unions - which the court called "plainly unlawful" - and to limit what unions can bargain over.

The ruling of the US Court of Appeals for the District of Columbia Circuit backs up an October ruling by US District Court Judge Rosemary Collyer, which also struck down the employee relations portions of the department's personnel system. This latest ruling came after the department appealed that earlier ruling.

The appeals court also broadened the earlier decision by ruling that the department cannot restrict negotiations to "employee-specific" matters. Such limitations would be unprecedented and would "effectively eliminate all meaningful bargaining over fundamental working conditions, thereby committing the bulk of decisions concerning conditions of employment to the department's exclusive discretion," the court ruled.

The National Treasury Employees Union, which was lead plaintiff in the case, said the appeals court decision effectively settles the matter and strikes down what it calls "a regressive personnel system." NTEU president Colleen Kelley said she hopes to soon meet with Homeland Security Secretary Michael Chertoff to begin crafting new regulations that uphold collective bargaining rights.

Homeland Security spokesman Larry Orluskie said the department will soon discuss the impact of the ruling with the Justice Department and Office of Personnel Management and decide what their next steps will be.

Orluskie said Homeland Security continues to move forward with its pay-for-performance plan for most nonbargaining unit employees as part of its new human resources system, called MAXHR. Orluskie said the department is putting supervisors and managers through performance leadership training to prepare them for this transition.

"The human capital flexibilities contained in MAXHR remain critical to DHS mission accomplishment and our goal of creating a 21st century department," Orluskie said.

In other union news, the Federal Labor Relations Authority on June 27 began counting votes from Customs and Border Protection employees to determine once and for all whether NTEU or the American Federation of Government Employees will represent them. Kelley said a final vote tally should be finished by the morning of June 28.