DHS Personnel Rules Flout Congressional Mandate, Making Them Illegal, NTEU Tells Federal Appeals Court

Press Release April 6, 2006

Washington, D.C.—A federal appeals court should uphold the finding of a lower court that Department of Homeland Security (DHS) personnel regulations are a clear violation of the federal statute establishing the department, the general counsel of the National Treasury Employees Union (NTEU) argued today.

As lead counsel for all DHS unions, NTEU General Counsel Greg O’Duden told a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that the personnel regime fails to ensure the collective bargaining rights of DHS employees, as required by Congress in the Homeland Security Act (HSA), and thus illegal.

In describing aspects of the regulations that consolidate virtually unprecedented personnel authority in DHS management, O’Duden told the panel that “a scheme with these features is fundamentally at variance with collective bargaining.” He added: “There is no indication in the (homeland security) statute that Congress intended this result.”

NTEU President Colleen M. Kelley, who attended today’s hearing, reiterated her view that this case has far-reaching impact throughout the federal sector.

The administration has said that it wants to use these regulations, and similar ones proposed for employees of the Department of Defense (DoD) as models for all federal agencies. The DoD regulations were also struck down as illegal by a lower federal court.

The DHS regulations fail in the face of the congressional intent expressed in HSA, O’Duden said, because they give DHS the authority to unilaterally abrogate collective bargaining agreements and take matters off the bargaining table; because they narrow the scope of bargaining to exclude virtually all meaningful day-to-day workplace issues; and because they enlist an arm of management—in the form of an internal DHS board—to resolve bargaining disputes, and in the process essentially eliminating review by neutral third parties.

In addition to urging the three-judge appellate court panel to uphold the injunction granted by a judge of the U.S. District Court for the District of Columbia preventing implementation of the rules, O’Duden asked that they review and find in NTEU’s favor aspects of the personnel regime on which the lower court did not fully support the NTEU position.

These deal with the narrowing of the scope of matters subject to bargaining, and the DHS’ attempts to change the roles and procedures of two independent federal agencies—the Federal Labor Relations Authority (FLRA) and the Merit Systems Protection Board (MSPB).

The NTEU general counsel criticized DHS’s purported limit on the authority of the MSPB and arbitrators to mitigate penalties unless such penalties are wholly without justification; and the fact that DHS and the Office of Personnel Management exceeded their statutory authority by seeking to conscript the FLRA to adjudicate cases arising under the new rules.

O’Duden described the penalty mitigation aspects of the DHS regulations as being “designed to make penalty mitigation much more difficult for federal employees.”

As to the scope of bargaining issue, the NTEU general counsel argued that DHS management can’t unilaterally take matters off the bargaining table. If they can, he said, then the agency “can work its will on every matter impacting employees.”

In addition to its initial district court victory last August, NTEU won a second victory against the DHS regulations when the same lower court judge refused a DHS request to narrow her injunction and let the agency implement certain provisions. She said, in support of an argument advanced by NTEU, that the regulations are so intertwined that it would be impossible to implement just some of them. Thus, the entire personnel regime was enjoined.

The DHS rules, if implemented, would severely curtail workers’ collective bargaining, due process and appeal rights. DHS has resisted NTEU efforts to get it to the bargaining table to work out a reasonable personnel system; instead, the agency has continued to press the matter in the courts.

NTEU is the largest independent federal union, representing 150,000 employees in 30 agencies and departments, including some 15,000 in DHS’s Bureau of Customs and Border Protection (CBP)—making it the largest union representing CBP employees.