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Homeland Security Department way out of line
June 30, 2006 by Ross Runkel at LawMemo

Congress told the Department of Homeland Security to come up with a "human resources management system." They did. One that is unlawful and bizarre according to the DC Circuit, which upheld an injunction against parts of the system.

Here's what the Department of Homeland Security did: Adopted a formal regulation (the "Final Rule") that

• defines the scope of collective bargaining for DHS unions
• channels some disputes through the Federal Labor Relations Authority (FLRA)
• creates a Homeland Security Labor Relations Board
• assigns an appellate role to the Merit Systems Protection Board (MSPB)

The DC Circuit held:

• The Final Rule unlawfully reserves to the DHS the right to unilaterally abrogate collective bargaining agreements that are lawfully negotiated and executed pursuant to the human resources management system.
• The Final Rule violates the federal statute by limiting the scope of bargaining to employee-specific personnel matters (e.g., discipline, discharge, promotion) and not extending it to other terms and conditions of employment.
• The DHS exceeded its authority by imposing onto the Federal Labor Relations Authority (FLRA) (an independent agency) a novel appellate function, defining FLRA jurisdiction, and dictating FLRA standards of review.
• Two issues were not ripe for review:
  1. A claim that DHS was not authorized to change the standard by which MSPB might mitigate a penalty for employee misconduct
  2. A claim that funneling bargaining disputes to the Homeland Security Labor Relations Board does not provide neutral adjudication

The case: NTEU v. Chertoff (DC Cir 06/27/2006)

My view: Crass overreaching by the Department of Homeland Security, clearly exposed in the court opinion written by labor law expert Judge Harry Edwards.

More commentary: D.C. Cir.: Homeland Security Personnel Rules Violate Workers' Rights at Workplace Profs Blog.

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