Appeals Court Vetoes Bush Plan To Alter U.S. Personnel Rules

(Gold9472: They've tried to do things I've never even heard of... WTF?!?)

By Eric M. Weiss
Washington Post Staff Writer
Wednesday, June 28, 2006; A23

A federal appeals court delivered another legal blow to the Bush administration's broad plan to overhaul the federal employee personnel system, ruling yesterday that the proposed changes would illegally limit the scope of collective bargaining.

The opinion by a panel of the U.S. Court of Appeals for the D.C. Circuit said new Department of Homeland Security personnel rules that deal with working conditions and employee appeals were illegal. The court upheld two rulings by a federal district judge that found the government had overstepped the authority given by Congress to rewrite personnel rules when it created the department in 2002.

Elated union leaders said the decision could scuttle the broader attempt to replace the 15-grade General Schedule pay system with one that has wide salary ranges known as pay bands, and to more strongly tie annual raises to performance evaluations. The administration hopes to expand the proposed DHS system throughout the government.

"I think the whole pay system is up in the air," said Colleen M. Kelley, president of the National Treasury Employees Union, which led a group of five unions that sued DHS. "Time is running out with this administration."

Kelley said she will ask Homeland Security Secretary Michael Chertoff to meet and discuss reworking the personnel plans with more union input.

The new system is the product of more than three years of work. It could dramatically change the way many of the department's 180,000 workers are paid, promoted, deployed and disciplined. A similar system being developed at the Defense Department would affect 746,000 workers and has been challenged in a separate lawsuit filed by labor unions.

Bush administration officials have argued that such changes are necessary to make the federal bureaucracy more nimble and responsive in the fight against terrorism and, more generally, to improve government efficiency.

"DHS will be discussing the impact of today's ruling and potential next steps with the Department of Justice and the Office of Personnel Management," said Larry Orluskie, a DHS spokesman. "Meanwhile, DHS is moving forward with implementing a key element of MAX-HR, performance management, for most non-bargaining unit employees.''

Last August, U.S. District Judge Rosemary M. Collyer found that Homeland Security's new personnel system falls short of guaranteeing collective bargaining rights because the department can override any provision in a labor agreement by issuing a department-wide directive.

Collyer faulted the department's plan to limit the ability of the independent Merit Systems Protection Board to mitigate punishment handed out to employees who have successfully appealed firings and demotions to the board. And she ruled that the plan would go too far in altering the role of the independent Federal Labor Relations Authority, many of whose duties would be taken over by an internal labor relations board.

Yesterday's opinion, written by Judge Harry T. Edwards on behalf of a three-judge panel, agreed with Collyer's findings on the DHS appeals process and on the proposed ability to unilaterally break negotiated contracts, which it called "plainly unlawful.''

But the appeals court went further, saying the DHS plan, by limiting collective bargaining to employee-specific personnel matters, leaves most decisions on working conditions up to management only.

"In no sense can such a limited scope of bargaining be viewed as consistent with the Act's mandate that DHS 'ensure' collective bargaining rights for its employees," the court said.

The administration could still decide to ask the full D.C. Circuit for review or could appeal to the Supreme Court.

"Today's ruling once more demonstrates the shortsightedness of this administration in developing personnel systems that ignore the rights of federal workers -- especially collective-bargaining rights," said Sen. Daniel K. Akaka (D-Hawaii), one of nine senators to vote against the creation of DHS, in part because of concerns about the personnel system. "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."

Sen. George V. Voinovich (R-Ohio), a supporter of the new personnel system, said: "In light of today's ruling by the court, I encourage the department to renew discussion with its employees over the sections of the regulations enjoined by the court."