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New Homeland Security Work Rules Blocked
Employee, Union Rights Not Protected, Judge Says

By Stephen Barr
Washington Post Staff Writer
Monday, August 15, 2005; A01

The Department of Homeland Security, after more than two years of work on new workplace rules, may have to scrap the plan after a federal judge questioned whether it protects union and employee rights.

The rules were scheduled to begin today but were blocked by U.S. District Judge Rosemary M. Collyer in a ruling released Friday night. A spokesman for the department, Larry Orluskie, said officials are to meet today and "consider next steps." Talk about an appeal or other options would be premature until government lawyers study the decision, he said.

The workplace rules would have dramatically reduced the clout of unions in the department, which has about 160,000 employees. Bush administration officials see the proposed rules as a key to moving forward -- and sidestepping union objections -- to more ambitious changes that would affect how employees are paid, promoted and disciplined.

The changes in labor, pay and other areas are part of a regulatory package that the administration devised after the Sept. 11, 2001, terrorist attacks. The White House has insisted that federal managers need more leeway in deploying workers and in negotiating with unions if they are to enhance national security.

But Collyer found that the Homeland Security plan "does not lead to enforceable contracts and thus fails to comply with the direction of Congress to ensure employee collective bargaining rights."

The ruling was hailed by labor groups, which have contended that the White House is trying to gut union rights under the guise of creating more flexible pay and personnel systems.

Congress and the White House have been closely watching the case. The Defense Department, with about 746,000 civil service employees, is revising its workplace rules, and the Office of Management and Budget has proposed legislation that would revamp federal pay and modify some union rules for 1 million more workers.

In her ruling, Collyer weighed union objections to parts -- but not all -- of the department's plan for a new personnel system and blocked implementation of new collective-bargaining and employee-appeal rules.

Collyer said she is willing to consider requests from Homeland Security to modify her injunction. But she repeatedly pointed out that the department could not create a system that undermined rights guaranteed elsewhere in the law.

"The regulations fail in their obligation to ensure collective bargaining rights to DHS employees," the judge said.

She said federal unions would be bargaining "on quicksand, as the department would retain the right to change the underlying bases for the bargaining relationship and absolve itself of contract obligations while the unions would be bound."

The lawsuit to stop the implementation of new bargaining rules was filed by the National Treasury Employees Union and four other unions. Colleen M. Kelley, the NTEU president, said the judge sent "a very clear message that the department has overstepped the bounds that were given them by Congress."

Kelley said the department should meet with NTEU and "start the conversation from the beginning as to what a system would look like for DHS and their mission and for their employees, who actually deliver on the mission every day."

John Gage, president of the American Federation of Government Employees, said department officials have refused to listen to employees and managers on how to improve systems. "I just hope DHS takes a step back on this," he said.

The rules issued by the department Feb. 1 would prohibit unions from negotiating over arrangements for staffing, deployments, technology and other workplace matters. The rules would also allow the Homeland Security secretary to override any provision in a collective bargaining agreement by issuing a department-wide directive.

Collyer said a system that allows "the unilateral repudiation of agreements by one party" is not collective bargaining. "A contract that is not mutually binding is not a contract," she wrote.

In most federal agencies, including Homeland Security, current law prohibits unions from bargaining over pay and work stoppages. The law permits agencies to ignore contract obligations during emergencies.

The judge also faulted the department for seeking to diminish rights by federal employees to appeal firings and demotions to an independent agency, the Merit Systems Protection Board.

The department, Collyer said, has sought to "effectively insulate" itself from MSPB's review of adverse personnel actions. "Rather than afford a right of appeal that is impartial or disinterested, the regulations put the thumbs of the agencies down hard on the scales of justice in their favor," she wrote.
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