DHS Ruling Deals Administration a Setback
A federal appeals court left no doubt yesterday that the Bush administration overreached in fashioning new workplace rules for the Department of Homeland Security.
The department's regulation "renders 'collective bargaining' meaningless; and it is utterly unreasonable and thus impermissible, because it makes no sense on its own terms," the three-judge panel found.
  Appeals Court Chief Judge Harry T. Edwards wrote the opinion. (Courtesy Of United States Court)
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Syndicate/SubscribeThe judges, at another point in a 50-page opinion, said, "The government's position not only defies the well-understood meaning of collective bargaining, it also defies common sense."
To imagine that a contract is not binding on both parties, as the Bush administration contended, "is simply bizarre," the judges wrote.
For three years, Bush administration officials have defended their plans for new workplace rules at Homeland Security and the Defense Department, contending that managers should not feel any hesitation to respond to emergencies or terrorist threats because of a union agreement. Unions responded that their contracts already contained emergency clauses that gave managers ample flexibility, and they filed lawsuits against the new rules.
Yesterday, the U.S. Court of Appeals for the District of Columbia Circuit, said the Homeland Security rules failed to ensure that employees could bargain collectively and went too far in limiting the topics that could be put on the negotiating table. [Story, Page A23.]
"The obvious problem," the ruling said, "is that very few 'conditions of employment' are subject to meaningful bargaining, and the few conditions over which the parties can negotiate may be unilaterally abrogated by management. A system of this sort does not even give an illusion of collective bargaining."
The opinion, written by Judge Harry T. Edwards and joined by Judge A. Raymond Randolph and Judge Thomas B. Griffith , leaves the White House with a tough decision to make -- file for a review at the Supreme Court or go back to the drawing board.
Administration officials, who spoke only on condition that they not be identified, acknowledged that the ruling was a heavy blow. One official said the new Homeland Security personnel system was "dead in the water" and added: "There is no leadership on this."
Clearly, much is at stake. The Pentagon lost on similar grounds in U.S. District Court, and its appeal will be handled by the federal appeals court here. Additional adverse rulings could jeopardize other administration efforts as well, most notably the push to retool the federal pay system to include more performance-based standards.
Two senators who oversee federal workforce issues urged the Bush administration officials and labor leaders to meet and discuss their differences.
"In light of today's ruling by the court, I encourage the department to renew discussions with its employees over sections of the regulations enjoined by the court," Sen. George V. Voinovich (R-Ohio) said.
Sen. Daniel K . Akaka (D-Hawaii) said, "Now is the time for the department to sit down with the federal employee unions to work out a personnel system that is fair, contemporary, flexible, and has the support of employees and the department's leadership."
The National Treasury Employees Union argued the case in court and union president Colleen M. Kelley yesterday called the appeals court ruling "a sweeping legal victory."
She said she would ask Homeland Security Secretary Michael Chertoff for a meeting to "work out a system that can be supported and will allow employees to do their jobs."
But Kelley also suggested she was not certain a deal could be reached between unions and the administration. "They have been pretty tireless in their efforts to impose change, whether legal or not. . . . Now we will see what they do."
NTEU President Kelley will take your questions about the appeals court ruling at noon today on Federal Diary Live athttp:/
