OMB not deterred by DHS personnel reform setback

The push for governmentwide personnel reform will not be affected by last weekend's court ruling that parts of the Homeland Security Department's similar plan are illegal, according to Office of Management and Budget officials.

Judge Rosemary Collyer of the U.S. District Court for the District of Columbia found that the DHS plan did not provide adequate collective bargaining capacity for employees.

Collyer also ruled that the agency illegally altered the role of the Federal Labor Relations Authority, instead creating its own Homeland Security Labor Relations Board for handling labor disputes and using the FLRA primarily as an appeals body. Additionally, the judge found the agency's proposed standard--to be used by the Merit Systems Protection Board in deciding whether or not to mitigate employee penalties--to be too harsh.

The Aug. 12 ruling came as a result of a lawsuit brought by the National Treasury Employees Union and four other labor organizations on behalf of DHS employees.

However, while DHS officials now must either redesign the labor relations portion of their proposal or appeal the decision, Clay Johnson, OMB's deputy director for management, said his plan for domestic agencies, called the Working for America Act, won't need the same adjustments.

"We're still studying the ruling, but it largely deals with collective bargaining issues, which the Working for America Act does not impact to any degree," Johnson said. "Instead, the WFAA proposal seeks to require agencies to better manage, develop and reward employees."

Some skeptics disagree with Johnson's assertion that his proposal will not have an impact on collective bargaining at all. Following the release of the WFAA draft, National Treasury Employees Union President Colleen Kelley said that "the system fails to ensure a fair and objective compensation system and goes well beyond establishing a so-called pay-for-performance system to stripping collective bargaining rights and employee appeal rights."

In its own supplemental documents, which OMB released along with the draft proposal, the agency pointed out some changes to labor relations policies.

For one, OMB says its new system would not require bargaining with unions if it becomes necessary to "act quickly to prepare for or prevent an emergency," while the current system does require bargaining.

In the draft proposal, OMB defines emergency as "an actual or potential situation requiring immediate action to carry out critical or essential agency functions, including, but not limited to, any situation involving or potentially involving: an adverse effect on agency resources; an increase in agency workload due to unforeseeable events; changed missions requirements imposed on the agency by external authorities, or any budgetary exigency caused in whole or in part by authorities external to the agency."

That definition leaves open the possibility for "emergency" to be redefined by management to include additional circumstances in the future.

Additionally, while the draft does not adopt Homeland Security's stringent MSPB standard, which required the board to find an employee's penalty to be "wholly without justification" in order to mitigate it, it does tinker with MSPB rules.

OMB's supplemental materials say that while the current system allows the MSPB to "mitigate penalty based on lesser factors than mission impact," this new plan would allow the board to "mitigate penalty, but must give impact on agency mission primary consideration."

OMB's plan does, however, primarily focus on creating a pay-for-performance system. DHS' own such system was not affected by the judge's ruling.

Johnson told reporters after releasing the WFAA draft that it does not simply take the DHS system and apply it governmentwide, because the domestic agencies have a different mission.

"We don't have the same need for urgent action in the domestic agencies," Johnson said.

A DHS spokesman said the agency is reviewing the ruling and deciding whether or not to appeal. OMB said it will introduce its legislation in Congress in the fall.