By Stephen Barr
Wednesday, January 25, 2006

Judge Emmet G. Sullivan presides over his federal courtroom with an easy manner, a sleek laptop computer on his desk and the ancient scales of justice behind his chair. He does not always require the audience to stand when he enters and leaves the courtroom, and yesterday he gave ample time to Justice Department and union lawyers to argue over new workplace rules at the Defense Department.

The rules will change the way in which 650,000 Defense civil service employees are assigned work, paid and disciplined. A coalition of unions filed suit to stop certain changes, and Sullivan's decision in the case could affect other Bush administration efforts to revamp civil service rules across government.

The rules, as Sullivan put it yesterday, are "extremely important, extremely complicated." To limit confusion, union and Justice Department lawyers used slide shows to make their points to Sullivan.

Sullivan asked the lawyers to shed light on what Congress intended in creating the National Security Personnel System, whether Pentagon officials had honored a mandate to collaborate with unions on the development of the rules, and whether the Pentagon could waive civil service law on union rights and take numerous issues off the bargaining table.

Daniel M. Schember , representing the union coalition, and Joseph W. LoBue , a Justice lawyer representing the Pentagon and the Office of Personnel Management, jousted over whether rules on labor-management negotiations must be read as a whole. One part calls for ensuring that Defense employees retain their bargaining rights, but a second part gives the department broad powers to limit labor rights and to override union contracts.

Schember pointed to statements by senators, such as Susan Collins (R-Maine) and Carl M. Levin (D-Mich.), that a compromise reached between the House and Senate did not allow the Pentagon to waive the basic requirements of civil service labor law.

LoBue said Congress knew it would be allowing Defense to set up a different system and that the judge should treat part two of the rules as an exception to the first part.

When the judge asked about the process used to shape the new rules, Joseph Goldberg , representing the American Federation of Government Employees, said the Pentagon had not followed the law, which calls for "meaningful discussions" and the participation of unions in revising workplace rules. Goldberg said the Pentagon "went dark" on the unions and drafted a regulation without their involvement.

Sullivan asked why the Pentagon had waited 60 days to start talks with unions on the new rules and whether they had a seat on the design team. LoBue said the Pentagon had provided the unions with ideas and draft proposals and had given them time to comment when a proposed rule was published. The "meet and confer" period was not a sham, LoBue said, contending that unions had the opportunity to be heard.

Hovering over the case is a ruling by one of Sullivan's colleagues on the U.S. District Court concerning workplace changes planned at the Department of Homeland Security. Judge Rosemary M. Collyer blocked the department's new labor rules because they fell short of guaranteeing bargaining rights.

Like Defense, Homeland Security would permit department officials to override any provision in a union contract by issuing a policy directive. Homeland Security has appealed Collyer's decision.

LoBue told Sullivan it is inappropriate to compare the cases, because Congress wrote a different law for Defense that included a provision saying that the new rules "shall supersede" collective bargaining agreements. Homeland Security was not given such congressional instruction, LoBue said.

In addition, he said, the Pentagon regulation allows only a relatively few senior officials to issue NSPS directives, eliminating the possibility that a lower-level manager could curb bargaining.

The case could turn on how the judge views the new rules in relation to national security. LoBue argued that Defense needs maximum flexibility to respond to terrorist threats and reassign civil service employees quickly to support the military. Schember pointed out that the government has not identified any national security problems that would require the jettisoning of union rights.

Sullivan listened, but noted, "This is a different world since 9/11."

He promised to reach a decision by March 1.

Please join me at noon today for a discussion of federal employee and retiree issues on Federal Diary Live at http://www.washingtonpost.com .

E-mail:barrs@washpost.com