Appeals court hears arguments in DHS labor rights case

A three-judge panel heard arguments Thursday in an appeal of an August decision that thwarted the Homeland Security Department's new labor relations system.

The panel from the U.S. Court of Appeals for the District of Columbia, made up of judges Harry Edwards, A. Raymond Randolph and Thomas Griffith, questioned the government forcefully over the department's plan to allow senior-level officials to override collective bargaining agreements after the fact.

"Why don't we get to the heart of the issue?" Edwards asked. "Where is it in the history of our country under any collective bargaining scheme … that allows the employer to unilaterally abrogate an agreement?"

That issue -- management's authority to issue a directive at any time that negates a prior agreement -- was central in District Court Judge Rosemary Collyer's summer decision to enjoin the system. Her ruling was appealed by both sides on issues they lost.

Edwards, an appointee of President Carter who often is cited as an expert in the field and wrote a book called Labor Relations Law in the Public Sector, was the most outspoken of the judges, saying it is "nonsense" to describe DHS' desired system as collective bargaining.

When lawmakers gave DHS authority in 2002 to create a new personnel system with more flexible workplace rules for the sake of national security, they required the department to preserve a system of collective bargaining.

"Congress did not say you could ignore collective bargaining rights," Edwards said. "It said just the opposite."

A central part of DHS' personnel overhaul is the plan to replace the General Schedule pay system with broad pay bands and to give raises based on market studies and performance evaluations, rather than simply time in service. The department is still planning to begin putting its pay reforms, which are not part of the lawsuit, into place this year.

Griffith, appointed by President Bush in June, asked government lawyer Thomas Bondy what he thought Congress meant when it said to preserve collective bargaining, to which Bondy replied that the new DHS system indeed retains the "trappings" of collective bargaining.

"It doesn't say trappings," Griffith said. "It says the right to collective bargaining." Griffith also used Collyer's wording, referring to contracts under the new DHS system as "illusory."

DHS' new system also modifies the role of the Federal Labor Relations Authority, a governmentwide body that adjudicates federal labor-management disputes. DHS regulations creating the system largely replace the FLRA with an internal Homeland Security Labor Relations Board, relegating the FLRA to an appeals role.

Collyer ruled that the agency illegally altered the FLRA's duties without congressional authority. Unions bristle at the notion of management-appointed board members deciding labor-management disputes.

Judge Randolph, a George H.W. Bush appointee, questioned Bondy on that point, saying Congress only authorized the department to rework itself.

"The FLRA is not in Homeland Security," Randolph said. "It's a separate, independent body outside of Homeland Security, right?"

Edwards added to that line of questioning, asking, "Where do you get the authority to tell other existing agencies what to do?"

The unions, represented by Gregory O'Duden, general counsel of the National Treasury Employees Union, also were questioned hard on their appeal of the department's ability to limit matters that are subject to collective bargaining in the first place, which Collyer let stand.

Even if the unions are successful in removing management's right to renege on contracts after the fact, the ability to limit the scope of bargaining still would allow the department to remove whole subjects from collective bargaining, limiting union power.

Griffith asked O'Duden, "Why shouldn't we just wait to see what happens here?," questioning the grounds on which the court could rule what is and is not allowed to be in the scope of collective bargaining.

The appeal is on an expedited schedule. O'Duden told reporters after the arguments that an opinion could take two to three months, but there is no set timeline.

In another wrinkle, the two largest unions in the coalition that filed the lawsuit, NTEU and the American Federation of Government Employees, are scheduled to face off in a union election May 9 to represent the Customs and Border Protection employees in DHS. If NTEU loses, it would not represent any employees in the department.