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Mediating the Fracas Over 'Flexibility' at Homeland Security

By Stephen Barr
Friday, April 7, 2006

"You know what Justice Black used to say? Flexibility is mush."

With that quip, Judge A. Raymond Randolph cut into the opening statement of the government's lawyer, who was defending new workplace rules at the Department of Homeland Security.

Randolph was referring to Hugo L. Black, the legendary Supreme Court justice. And the Homeland Security case, which was before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit yesterday, may go all the way to the high court.

Congress set up the Homeland Security Department in response to the Sept. 11, 2001, terrorist attacks, and the Bush administration has made "flexibility" a buzz word to justify weakening the clout of unions at the department. But such phrases as "flexible and contemporary" have not fared well against the established rules that govern binding contracts and collective bargaining.

Unions, led by the National Treasury Employees Union, have argued that Homeland Security went far beyond what Congress intended in revamping labor rules and persuaded a U.S. District Court judge to block the department's plan. The unions contend the department's changes would nix contracts, take topics for negotiation off the bargaining table and rely on an in-house board, beholden to the homeland security secretary, to resolve labor disputes.

"A scheme with all these features cannot be collective bargaining," Gregory O'Duden , NTEU's general counsel, told Randolph and the two other appeals court judges on the panel, Harry T. Edwards and Thomas B. Griffith .

The government's lawyer, Thomas Bondy of the Justice Department, stressed that the rules would bring uniform practices to Homeland Security, a department formed from 22 existing agencies. The rules also would provide for new personnel policies that would speed the deployment of law enforcement officers along the nation's borders, he said.

For example, Bondy said, the new rules envision one system for evaluating the job performance of employees, rather than 22 different performance-appraisal methods. Setting up one management system, he suggested, could require the department to override union contracts.

The judges seemed open to that idea but skeptical about whether the department should be allowed to void future contracts once the new system is established. Randolph and Edwards appeared wary of legal tensions created by the rules and the department's assumption that it could make policy on behalf of the Federal Labor Relations Authority, an independent agency set up in 1978 to handle disputes between unions and agencies.

At one point, Edwards told Bondy, "You have to give these [regulatory] terms some meaning."

The unions are not challenging the centerpiece of the department's plan -- to abolish the decades-old General Schedule and replace it with a pay system that will more closely link salary increases to occupation, location and individual job performance.

Colleen M. Kelley , president of NTEU, said after the hearing that the department's timetable calls for union-covered employees to see changes in their paychecks starting in January 2009. But she said the department has not settled on key issues, such as the design of new salary scales, and suggested it not rush the project.

Whether unions might have a role in designing the new pay system may hinge on whether the appeals court agrees that Homeland Security can refuse to bargain over "impact and implementation" issues.

Yesterday's arguments drew a crowd of onlookers, including Kelley, T.J. Bonner , president of the National Border Patrol Council; Mark Roth , general counsel of the American Federation of Government Employees; Doris Hausser and George Nesterczuk , policy advisers at the Office of Personnel Management, and lawyers from Homeland Security.

The judges gave no indication of when they might rule in the case, but Bush administration officials hope to get a decision in the next month or two.

Talk Shows

Delia Johnson , co-chair of the Council of Federal EEO and Civil Rights Executives, will be the guest on "FEDtalk" at 11 a.m. today on http://Federalnewsradio.com and WFED radio (1050 AM).

Adm. Robert F. Willard , vice chief of operations for the Navy, will be the guest on "The IBM Business of Government Hour" at 9 a.m. Saturday on WJFK radio (106.7 FM).

Stephen Barr's e-mail address isbarrs@washpost.com.

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