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Homeland Security Department Ends Litigation on Workplace Rules

By Stephen Barr
Wednesday, September 27, 2006

At the Department of Homeland Security, litigation over new workplace rules is out.

The Bush administration, after losing three times to a labor coalition led by the National Treasury Employees Union, has decided not to file a petition at the Supreme Court, a spokesman for the department said yesterday.

The union had argued in federal district court and before a three-judge appeals panel that the administration's plan would gut the collective-bargaining rights of Homeland Security Department employees and undermine their rights to fair hearings when they sought to appeal major disciplinary action.

The courts found that the department had overreached and blocked the introduction of key parts of the new rules.

"I am very pleased," Colleen M. Kelley , president of the union, said of the decision not to continue litigation. "I think they did the right thing for the department, the employees and the country. We are looking forward to working with them on the priorities for the department."

Larry Orluskie , a spokesman for Homeland Security, said that Paul D. Clement , solicitor general at the Justice Department, informed officials late Monday that he would not take the case to the high court.

"This decision is okay with the Department of Homeland Security because it allows us to move forward toward implementing labor-relations flexibility rather than spending additional time in litigation," Orluskie said. "We will continue to engage with our components and partners in the unions to consider all options in moving forward."

Administration officials declined to discuss what Clement's decision means for the Defense Department, which also has been stopped by a federal court from trying to curb union rights as part of the new National Security Personnel System. The Pentagon has appealed the court ruling, but Mark Roth , general counsel for the American Federation of Government Employees, said that the Defense Department "would be smart to end this now."

Four years ago, Congress gave the Homeland Security Department a green light to overhaul how it pays, promotes and disciplines about 110,000 employees as part of the larger reorganization to strengthen homeland security and fight terrorism. But the rollout of the new system was slowed by legal setbacks in the past two years, and the department no longer has "a hard timeline," as one official put it, for completing the new personnel system.

About 4,000 supervisors and nonunion employees at Homeland Security headquarters, Immigration and Customs Enforcement, and the Federal Law Enforcement Training Center have been placed under a new performance-management system. An additional 6,700 managers and supervisors at Citizenship and Immigration Services and Customs and Border Protection will convert to the new performance system next month.

Under the new system, managers and employees set goals, link those goals to the department's objectives, and measure how well they meet expectations laid out for their performance. About 11,000 people have been trained on the new system.

The department hopes to use the system to tie job performance ratings to pay raises and bonuses but has no deadline for shifting employees to performance-based pay.

Rollout of the new pay system also has suffered from turnover in the department. Almost all officials who designed or planned the new workplace rules have retired or left the government. Marta Brito Perez , who had served as a top policy official at the Office of Personnel Management, was recently named as the top personnel adviser to Homeland Security Secretary Michael Chertoff and will play a key role in deciding the department's next steps.

Union officials said they envision that the department and unions will meet to discuss possible options for replacing the rules blocked by the courts. Administration officials declined to discuss their next steps but did not rule out more talking, making changes through a presidential order or returning to Congress for a change in law.

Sen. Susan Collins (R-Maine), chairman of the Senate Homeland Security and Governmental Affairs Committee, "is hopeful" that the department and unions "will approach the next round of discussions with an open mind," a spokeswoman said.

In a statement, Sen. Daniel K. Akaka (Hawaii), the ranking Democrat on the Senate's federal workforce subcommittee, said, "it is my expectation that DHS will now engage in meaningful discussions with unions and management associations."

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