August 9, 2005: NORTON SAYS COURT COLLECTIVE BARGAINING DECISION MEANS DHS MUST REWRITE REGS
FOR IMMEDIATE RELEASE
August 9, 2005
NORTON SAYS COURT COLLECTIVE BARGAINING
DECISION MEANS DHS MUST REWRITE REGS FROM SCRATCH
Washington, DC — Congresswoman Eleanor Holmes Norton (D-DC), a member of both the House Government Reform Committee’s Subcommittee on Federal Workforce and Agency Organization and of the Homeland Security Committee, today said that a decision of the U.S. District Court here striking down major portions of Department Homeland Security (DHS) regulations, should quickly lead to a top to bottom review and total rewrite to avoid further delay in implementing new personnel policies for the Department. “The delay that now will result could have been avoided because virtually all of the issues that caused Judge Rosemary Collyer to enjoin key parts of the regulations were the subject of great dispute at our hearings,” Norton said.
The court found that despite the latitude Congress gave the Department, Congress did not intend to allow DHS to radically alter collective bargaining. The Judge concluded, “When good faith bargaining leads to a contract that one side can disavow without remedy, the right to engage in collective bargaining ab initio is illusory.” After reading the decision, Norton said that the agency had “redefined collective bargaining out of existence,” as the court said when it found that “the Secretary retains numerous avenues…[to] unilaterally declare contract terms null and void without prior notice to the unions or employees, and without bargaining or recourse.” According to the Congresswoman, “Many of us on the Government Reform Committee were concerned that the DHS statute allowing the Department to create a separate system that would be ‘flexible’ and ‘contemporary’ might be taken by DHS as a license to nullify collective bargaining and civil service protections, and this is what the regulations do to the right to bargain collectively.” She said that in addition, “none of our concerns about the stripping of the right to appeal to the Fair Labor Relations Authority (FLRA), a statutory independent agency were taken seriously by DHS.” The court found that the agency stripped the FLRA of most of its basic features so that it could no longer conduct hearings and resolve unfair labor practice complaints, as the statute requires. Instead FLRA would have reviewed a new in-house agency, the Homeland Security Labor Relations Board (HSLRB), created by and subject to the supervision of the Secretary, but only on the written record of the HSLRB with little latitude to change the HSLRB decision.
“The court’s rejection of the DHS attempt to virtually nullify collective bargaining, coupled with the agency’s radical transformation of the FLRA and its mission, send an important message to the Office of Personnel Management and the Bush administration,” Norton said. The DHS regulations were the first to be changed following 9/11, and Department of Defense regulations with many of the same flaws struck down today followed. Norton said: “The point was to start with these two agencies, which comprise more than half the federal labor force, and then to spread the regulations government wide. DHS, which began this process almost four years ago with great urgency, has the obligation now to get back to work. It is clear that the agency can adopt flexible standards to suit DHS’s important mission without destroying collective bargaining. The Department attached great urgency to the changes in the regulation, and an appellate court could well agree with the District Court. If these regulations were deemed urgent four years ago, then the District Court decision must be considered a roadmap on how to proceed to create a valid process that respects collective bargaining now.”