Revised DHS labor relations rules under scrutiny

Federal Judge Rosemary Collyer questioned Wednesday whether the Homeland Security Department is able to sever illegal portions of its new labor relations regulations from the legal ones and still leave a functioning system.

Collyer heard oral arguments from labor unions and DHS officials on whether the department should be allowed to move ahead with portions of its new labor relations rules, after the judge ruled in August that some of the regulations are illegal.

That 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.

DHS lawyers said they can separate the legal from the illegal regulations, are eager to implement those that it can, and submitted a proposal to accomplish this after the judge's ruling. The department was initially scheduled to implement its entire set of labor relations rules on Aug. 15, until Collyer's decision halted the move.

At question in the courtroom was the notion of a binding contract. In Collyer's previous decision, she said that the DHS regulations did not allow for true binding contracts because the department retained the right to issue a directive at any time that negates a prior agreement.

Justice Department lawyer Joseph Lobue, who argued on behalf of DHS, said the new proposal fixes this problem by taking away the specific ability of the department to repudiate valid protective bargain agreements.

But Collyer questioned whether the change went far enough. She said there are a variety of means within the regulations given to the DHS secretary to invalidate contracts, and cited the example of the authority "to take whatever actions necessary" to complete the agency's mission.

"That is an extraordinarily broad grant authority," Collyer said. It has "no limitations associated with it, and it concerns me that this is one of the avenues" by which the agency could step on an employee's right to a binding contract.

"Your proposed order I don't think addresses that concern," she said.

Also at issue is the judicial review process. In Collyer's first decision, she ruled that the department's use of the Federal Labor Relations Authority as an appellate body for a newly minted Homeland Security Labor Relations Board was illegal, saying the department did not have the power to change the function of an independent body that is used governmentwide. As is, the FLRA plays a fact-finding and adjudicatory role in labor disputes.

DHS' revised proposal retracted the FLRA's role, and seeks to implement the HSLRB without that appellate overview.

Collyer questioned whether the HSLRB could function legally without such a safeguard.

"This was a conundrum that I didn't know what to do with the first time around," Collyer said. "It was clear that the agencies were trying to establish a way for review of HSLRB decisions so that they would not be unappealable in some fashion outside the department, that it wouldn't be a totally tight little world."

Now that there is this "tight little world," Collyer said she questioned whether a review board such as the HSLRB, whose members are all appointed by the DHS secretary and to which the secretary can add two additional members at any time, is sufficient.

Lobue said HSLRB issues could potentially be brought into the mainstream court system. He also said the broad authorities to invalidate bargained agreements and dictate their review process are within DHS' authority under the law.

"These regulations may be very broad," Lobue said. "But they're no broader than what Congress has given."

The unions argued that these provisions are inextricable from the labor relations regulations as a whole, and that the "voice" that Congress intended unions to have in the DHS system is silenced by these regulations.

In addition to submitting this revised proposal, DHS also has the option to file an appeal of Collyer's initial decision, which it must do by Oct. 11. Collyer said she would decide on the revised proposal before that date, to give the department time to weigh its options.