DHS personnel system struck down in appeals court

NTEU vs. Michael Chertoff ruling

An appeals court has dealt a heavy blow to the Department of Homeland Security’s new personnel rules. In a unanimous decision, the three circuit judges on the U.S. Court of Appeals for the D.C. Circuit concluded that the labor relationship portions of DHS personnel guidelines illegally restrict the scope of bargaining and cannot be implemented.

“This ruling is very important because it preserves a critical voice for the union and the employees which we represent,” said National Treasury Employees Union president Colleen Kelley. “This should effectively end DHS' efforts to impose these unjust and unnecessary rules [that would] constrict employees’ workplace rights, deny them fair treatment and further erode their morale.”

NTEU was the lead counsel in the case, representing the other Homeland Security unions in the suit, including the American Federation of Government Employees, the Metal Trades Council of the AFO and the National Association of Agriculture Employees.

The appeals court originally heard arguments in the case on April 6. At that time the three judges criticized the Homeland Security counsel for its defense. The language in the final ruling is similarly harsh, calling DHS’ personnel rules “simply bizarre” and “defying common sense.” The court also rejected DHS' attempts to redefine the rules and function of the Federal Labor Relations Authority, which would oversee labor negotiations.

This is the latest of several setbacks to DHS’ personnel rules. In the original case in August 2005, Judge Rosemary Collyer ruled that the agency violated the edicts of the Homeland Security Act by giving DHS officials the right to negate collective bargaining agreements unilaterally. More recently, the House voted to appropriate $14.7 million to fund DHS’ MaxHR pay-for-performance system in fiscal 2007, down from the $29.7 million in the previous fiscal year.

Kelley said she will seek to meet directly with DHS Secretary Michael Chertoff in hopes of working with him to develop a new personnel system that would, in her words, “serve the country [and] doesn’t needlessly trample on the rights of federal employees.” Kelley also said she hopes the ruling will become a precedent for other controversial pay-for-performance personnel rules, such as the Defense Department’s National Security Pay System, which has similarly been cut down by court decisions.