When creating the Department of Homeland Security (DHS), Congress gave its Secretary and OPM the authority to develop a separate resources management system for DHS (“System”). Given that this System was to be created without many of the constraints imposed by the existing civil service laws, its development has been watched with a keen eye. After the regulations were drafted implementing DHS’s new System, several unions, representing approximately 60,0000 DHS employees, challenged the regulations for allegedly failing to comply with the specific system requirements set out by Congress, and for exceeding the authority granted.
In a ruling issued last Friday, U.S. District Judge Rosemary M. Collyer prevented DHS from implementing parts of the System, as scheduled. Judge Collyer faulted the regulations for not ensuring collective bargaining rights. In her ruling, the Judge stated that the regulations provided only “illusory” collective bargaining rights to DHS employees since “a binding contract” was missing from the System. DHS could “ignore the terms” of an agreement “whenever it believed necessary,” noted the Judge.
The Judge also faulted the rules for improperly interfering with the Federal Labor Relations Authority (FLRA) and the Merit Systems Protection Board (MSPB). Collyer disapproved of the limitations placed on the ability of the MSPB to mitigate misconduct penalties. The regulations state that it was their intention to created a “new, substantially more limited standard,” for MSPB mitigation of penalties selected by DHS. In fact, the regulations provide a draconian standard: the MSPB would not be able to mitigate a penalty chosen by DHS, “unless such penalty is so disproportionate to the basis for the action s to be wholly without justification.” “Rather than afford a right of appeal that is impartial or disinterested,” Collyer said, “the regulations put the thumbs of the agencies down hard on the scales of justice in their favor.” In addition, Collyer prevented DHS from altering the role of the FLRA, whose duties would have been taken over in large part, by a new internal Homeland Security Labor Relations Board (HSLRB), with FLRA no longer conducting hearings, but limited to an appellant role, to review the decisions of the HSLRB.
The Judge did not enjoin DHS’s plans to replace the General Schedule pay system with pay bands, and to tie annual raises to performance evaluations.
