Labor, Appeals Rights at Stake

The judge agreed with a group of unions that the implementing rules published by DoD last fall exceed the department’s authority under a 2004 law allowing the establishment of an alternative personnel system. The judge took particular issue with the leeway the rules would give management in voiding contract provisions and its authority over the national security labor relations board, a new entity that DoD proposes to create to take over many labor adjudicatory functions of the Federal Labor Relations Authority. The portion of the decision dealing with appeals rights took issue mainly with the creation of “mandatory removal offenses,” DoD’s attempt to insert another layer of management review after an administrative judge’s decision in an appeal, and the limits the rules would impose on the Merit Systems Protection Board’s ability to mitigate a disciplinary decision. The rules fall short of the protections in the law guaranteeing collective bargaining for unions and due process for employee appeals, the court held.