DHS Ruling Deals Administration a Setback
Another Federal Court Victory for Collective Bargaining

June 27, 2006: A federal appeals court left no doubt yesterday that the Bush administration overreached in fashioning new workplace rules for the Department of Homeland Security. The department's regulation "renders 'collective bargaining' meaningless; and it is utterly unreasonable and thus impermissible, because it makes no sense on its own terms," the three-judge panel found.

The judges, at another point in a 50-page opinion, said, "The government's position not only defies the well-understood meaning of collective bargaining, it also defies common sense." To imagine that a contract is not binding on both parties, as the Bush administration contended, "is simply bizarre," the judges wrote.

For three years, Bush administration officials have defended their plans for new workplace rules at Homeland Security and the Defense Department, contending that managers should not feel any hesitation to respond to emergencies or terrorist threats because of a union agreement. Unions responded that their contracts already contained emergency clauses that gave managers ample flexibility, and they filed lawsuits against the new rules.

Yesterday, the U.S. Court of Appeals for the District of Columbia Circuit said the Homeland Security rules failed to ensure that employees could bargain collectively and went too far in limiting the topics that could be put on the negotiating table.

On Feb. 27, U.S. District Court Judge Emmett G. Sullivan ruled that the Defense Department’s so-called National Security Personnel System (NSPS) fails to “ensure even minimal collective bargaining rights” for the department’s more than 700,000 civilian workers. He blocked the department from imposing the new rules.

Last August, in a decision on similar Bush-proposed workplace rules for the 160,000 workers in the Department of Homeland Security (DHS), U.S. District Judge Rosemary M. Collyer said, “The regulations fail in their obligation to ensure collective bargaining rights to DHS employees.”

Federal workers and their unions have been making the same argument since the Bush White House announced its plans in 2004 to make sweeping changes in federal personnel practices.

“From the very start, this so-called National Security Personnel System was a sham,” says Greg Junemann, president of the Professional and Technical Engineers.

The Defense personnel rules are patterned after the MAXHR rules the Bush administration unilaterally imposed on 160,000 U.S. Department of Homeland Security (DHS) employees in January 2005.

• MAXHR replaces decades of civil service pay grades and promotion rules with so-called performance-based job evaluations that would leave pay increases and promotions to supervisors and open the door to favoritism and political pressure on employees.

• MAXHR limits the issues that can be discussed in collective bargaining by taking pay and work rules off the table.

The proposed Defense National Security Personnel System (NSPS) also would:

• Enable Defense officials to unilaterally override provisions in union contracts and declare issues off limit for contract negotiations.

• End workers’ right to appeal labor-management disputes to an impartial third party by requiring an internal board, appointed by the secretary of defense, review such issues.

• Establish an unprecedented, and virtually impossible, legal threshold for overturning or reducing disciplinary actions or penalties.

• Provide no safeguards to prevent lowering the pay for the civilian defense workforce.

• Weaken veterans’ preference and completely eliminate seniority as factors considered during a reduction-in-force. Only “ratings of record” (subjective ratings by supervisors) could be considered for retention purposes in the event of a reduction.

The suit against the NSPS was fueled by 10 labor organizations acting on behalf of the United DoD Workers Coalition.