Officials forgo Supreme Court appeal in DHS labor case

Government officials on Monday night passed up their last chance to seek reversal of a court decision blocking proposed labor relations reforms at the Homeland Security Department.

The solicitor general's office, which brings cases to the Supreme Court on behalf of government agencies, let a midnight deadline pass without filing an appeal at the high court.

"We're OK with that because it allows the department to move forward in implementing our labor relations flexibilities rather than spending additional time in the litigation process," said Larry Orluskie, a DHS spokesman.

In June, an appeals panel unanimously upheld, and even broadened, an earlier ruling that the proposed system would illegally curtail collective bargaining rights for employees by giving management the ability to cancel negotiated agreements. DHS and Justice Department officials in August decided against challenging that decision before the full appellate court, but left open the option for a Supreme Court appeal.

A Justice Department spokesman declined to comment on why the solicitor general chose not to pursue the Supreme Court appeal.

Orluskie said DHS officials will begin talks soon on how to rework the system so it meets legal standards.

"What we're going to do moving forward is sit down with our component agencies, sit down with the unions, and discuss how we move forward and where we go from here," Orluskie said.

Representatives of the federal employee unions that brought the case were pleased at the government's decision.

"DHS has made the right decision," said Colleen Kelley, president of the National Treasury Employees Union. "It is now time for DHS to put this adversarial proceeding behind it and to join with NTEU in focusing solely on the agency's critical mission of protecting the American people."

"This is the smartest thing DHS has done in quite some time," said Mark Roth, a lawyer for the American Federation of Government Employees. "DHS management was in a battle they knew they couldn't win."

If DHS wants to rework its collective bargaining scheme, it must re-enter the meet-and-confer process with the unions representing its employees and resubmit the regulations to the Federal Register. The department is free, however, to move ahead with personnel changes that don't involve labor relations.

"We are working full-on with performance management," Orluskie said. He noted that DHS has trained 11,000 managers and supervisors on the new system, which focuses on job performance and will eventually link pay raises to performance ratings.

"It is my expectation that DHS will now engage in meaningful discussions with unions and management associations [on labor relations plans]," said Sen. Daniel Akaka, D-Hawaii, ranking member of a Senate federal workforce oversight subcommittee, in a statement Tuesday.

The law that created DHS, and allowed officials to rewrite personnel rules, gave the department five years for labor relations changes. As a result, department's authorization to modify the bargaining system ends in January 2009.