The dispute over the Bush administration's plan to overhaul workplace rules at the Department of Homeland Security may hinge on whether the rules grant so much power to management that unions will not be able to effectively represent employees.
"It's a question of whether there is room for true collective bargaining," U.S. District Judge Rosemary M. Collyer said yesterday after hearing government and union lawyers present sharply different interpretations of new workplace rules issued by the department.
In mid-August, Collyer expressed concern that the rules would put unions in the position of bargaining "on quicksand" and blocked the department's plan for a new labor-management relations system. But she left the door open for the government to argue for reinstatement of some of its plan, and when the government took her up on the offer, unions asked for yesterday's hearing.
The judge signaled yesterday that the design of the new labor-management system continues to cause her some concern. The rules allow the department to take issues off the bargaining table and to create an internal board to hear labor disputes. If all the flexibility is on the management side of the table, the judge said, "there is no collective bargaining."
Collyer expressed concern that the new rules might permit the department to walk away from contracts with unions, but she also noted that Congress has given the department extraordinary leeway to depart from current labor-management law and procedure.
The Bush administration has argued that Homeland Security managers need a "flexible" and "contemporary" personnel system in order to more quickly deploy workers and consult with unions if they are to enhance national security following the Sept. 11, 2001, terrorist attacks.
Government officials are closely watching the case. The administration is seeking to use part of the Homeland Security model -- for performance-based pay systems -- in the rest of the government. The Defense Department plans to issue its revised workplace rules next month, and some of the Pentagon's ideas are similar to those put forward by Homeland Security.
Yesterday's hearing drew several officials from Homeland Security and the Office of Personnel Management and federal unions. Among them were Gregg Prillaman, chief human capital officer at Homeland Security; Kay Frances Dolan, deputy chief human capital officer; Mark A. Robbins, OPM general counsel, and Colleen M. Kelley, president of the National Treasury Employees Union.
Robert H. Shriver III, a lawyer at NTEU, said the new rules would give managers at Homeland Security "unburdened authority to impose their views on every condition of employment."
He said the department could issue a personnel handbook or directives that could override union contracts or take issues off bargaining tables.
Joseph W. Lobue, a senior trial counsel at the Justice Department, said the rules did not give unlimited authority to Homeland Security to eliminate collective bargaining. He said the department wanted only to take the steps necessary to carry out its mission and protect the nation.
The government filed a motion this month asking to proceed with plans for the launch of the new labor-management system, and Lobue yesterday pointed to areas of agreement between the government and union as he asked Collyer to restudy issues in dispute. Collyer said she would rule by Oct. 11, the deadline for appeals to be filed in the case.
Contracting Probe Sought
Citing the arrest of a top federal procurement official, Rep. Chris Van Hollen (D-Md.) and five other Democrats yesterday asked the Government Accountability Office to review federal contracting procedures and look for possible misconduct.
David H. Safavian, who oversaw federal procurement policy at the Office of Management and Budget, was arrested Sept. 19 on charges of lying and obstructing an investigation of a Washington lobbyist. In his OMB job, he had been involved in Hurricane Katrina relief efforts.
"As we deal with the aftermath of Katrina and Rita and the awarding of huge no-bid contracts, it is critical that we ensure the integrity of the federal procurement and contracting process," Van Hollen said.