Judges scold DHS at appeals hearing

Lawyers representing the Homeland Security Department found themselves on the defensive during oral arguments April 6 before the U.S. Court of Appeals for the District of Columbia Circuit Court. A three-judge panel heard DHS' lawyers defend the department’s new labor-relations rules as necessary for unifying its workforce.

DHS’ lawyers argued that changes were necessary to create a uniform workforce after Congress created a new department from 22 agencies. But the judges rejected arguments about DHS’ organizational difficulties. “You have to do it in the context [of] what Congress says, not what you prefer,” Judge Thomas Griffith said. “Congress did not say that you could ignore collective bargaining.”

DHS’ unions contend that the department’s new labor-relations provisions fail to ensure collective bargaining rights for employees and are illegal under the Homeland Security Act, which gave DHS authority to create a new personnel system. The National Treasury Employees Union is the lead union in the case, NTEU v. Michael Chertoff.

In an earlier court decision, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia, said Congress intended for DHS to preserve collective bargaining rights when it created the new department.

During the April 6 hearing, other heated exchanges occurred concerning DHS’ proposed changes in the methods and procedures of two independent agencies, the Federal Labor Relations Authority and the Merit Systems Protection Board.

The judges’ decision in the case could have far-reaching influence because Bush administration officials have said that DHS’ new personnel system, MaxHR, might serve as a model for governmentwide changes in federal employee pay and employee-manager relations.

The unions’ lawsuit to protest MaxHR’s labor-relations rules has caused DHS officials to push back their implementation of MaxHR’s employee performance evaluation and pay provisions until next year. DHS had planned to begin introducing those changes last month.