GovernmentExecutive.com

Despite recent legal setbacks, a union opposing the Defense Department's new personnel system is considering a solo effort to take its case to the Supreme Court.

The American Federation of Government Employees is weighing the pros and cons of appealing the case to the Supreme Court without the involvement of the eight other unions in the coalition that has pursued the case thus far. According to AFGE General Counsel Mark Roth, the union is currently intent on filing.

In May, a panel of judges of the U.S. Court of Appeals for the District of Columbia ruled that, under the 2004 law allowing the National Security Personnel System, Defense has the authority to limit the collective bargaining rights of its civilian employees through November 2009. Last month, the coalition's request for a full court review of that ruling was denied.

That rejection left the union coalition with only one option for judicial relief -- appealing to the Supreme Court.

But according to some unions in the coalition, that could bring unwanted consequences. If the high court were to rule against the unions, for example, it could set a broad precedent that could hinder the ability to negotiate in the federal sector, the groups noted.

Roth said AFGE is considering such a concern as it decides whether to file. He also cited concern that an unfavorable decision by the high court could "spill over" onto an appeals court decision that struck down the labor relations portions of the Homeland Security Department's new personnel system.

Roth indicated that the remaining eight coalition partners are not moving forward in the legal battle, largely because some are hoping to find relief legislatively. He cited the Senate version of the fiscal 2008 Defense authorization bill, which includes language that would exclude all blue-collar workers from NSPS.

"Not as many of the unions have the same stake," Roth said. "Although I think it's fair to say that the coalition is supportive of the activities to get NSPS eliminated, AFGE will be the only plaintiff going forward."

Last month, AFGE asked the appeals court and the Supreme Court to delay issuing the mandate from the May ruling, giving the union time to prepare a potential petition for Supreme Court review. Roth said both courts recently denied AFGE's requests for delay, though the appeals court has yet to issue the mandate. Once it is issued, the Pentagon has the authority to move forward with the challenged portions of the system, Roth said.

But Joyce Frank, a spokeswoman for NSPS, said Tuesday that the department currently has no plans to implement the adverse action, appeals and labor relations provisions of NSPS. "The department is proceeding to implement the human resources provisions of NSPS to an additional 90,000 nonbargaining unit employees in fiscal 2008," she added.

Meanwhile, Roth acknowledged that an appeal to the Supreme Court could prove difficult, largely because the court rarely accepts cases involving a government agency from a nongovernmental party. But based on the strong dissent from appeals judge David Tatel in the May ruling, as well as a lower court decision that struck down the labor relations portions of NSPS, Roth said he is optimistic.

Still, AFGE's primary goal is to handle the issue legislatively, Roth said. The House and Senate versions of the fiscal 2008 Defense authorization bill include provisions that would repeal the Pentagon's authority to limit collective bargaining. Last month, the House approved a bipartisan spending bill amendment that would block funding for the labor relations portions of NSPS.

The union has until mid-November to file a Supreme Court appeal, Roth said, adding that it is likely that Congress will have finished any legislation concerning NSPS by then. "We have plenty of time to see if Congress handles the problem for us," he said.

COMMENTS

• The last post by "Civilian Worker" starts out with some legitimate criticisms of NSPS. But then it degenerates into a senseless rant against so-called "illegal aliens". Lets focus on our real problems and forget the xenophobic bigotry. A Rational Civilian Worker Posted September 19, 2007 1:52 PM
• Have you heard the Defense Secretary Robert Gates will deny the cost of living increase to DoD workers under the NSPS? The cost of living increase should not be linked to the NSPS (performance). With Health Insurance increasing in 2008 at the rate of 2.9% and the loss of the 3.5% cost of living increase you will go home with NEGATIVE 6.4% less of your pay! Robert Gates is overstepping his territory, let’s see him reduce his pay by 6.4%! I like Colleen K statement: The NSPS was created to save DoD money. One sure way to save the government money is to cut the Committees, Subcommittees, Sub-subcommittees, etc. on Capital Hill and throughout the government. Each time a committee is formed a high dollar position is created for a "buddy" to head the committee. The committee may not even have been necessary to begin with. Just a waste of the taxpayer’s taxesto keep the "good ole boys" in place. Don't forget all the money the ILLEGAL aliens are costing us each year and the amount of taxes the US would collect from 12 million known illegal aliens if they were documented? The US taxpayer is paying a handsome fee to educate their children. You didn't really want to send your child to college did you? Oh, did your children need braces on their teeth? What do you mean you are paying Medical Insurance, Auto Insurance, Social Security, Medicaid, Federal & State Taxes, property taxes when the illegal aliens do not have this expense yet they are having children at our expense on our Medicaid/Social Services. The child is claimed to be an American citizens, how can we separate the families & how can we deny the family benefits & assistance? What is WRONG with this picture? Can the US citizen go to Mexico and recieve these services? YES, take a stand, notify your Congressperson, fight back; take back American and your rights! Civilian Worker Posted September 17, 2007 1:18 PM
• Big Government is out to brake every union in the united states. Roosevelt during WW2 realized that organized labor was the life blood of the american production. With the shift we had the Kennedy adminstration attacking labor. Then the lawyer went after labor on outsourcing. Putting a strain on our skimpy economy.In addition to the thirty million illegals plan for international business. When will we force the legal system to be outsourced to Philadelphia Lawyers. vincent campellone Posted September 17, 2007 10:55 AM