08/12/2005

MEMORANDUM

TO:      Chapter Presidents and Legislative Coordinators

RE:      Huge Victory in NTEU Lawsuit Challenging DHS Regulations!

You will recall that in January 2005, NTEU filed a lawsuit against the Department of Homeland Security's final personnel regulations, with NTEU leading a coalition of five unions in the lawsuit. The lawsuit contended that DHS' regulations creating a new personnel system were not in compliance with the Homeland Security Act on the matters of collective bargaining and employee due process appeal rights.

On June 21, 2005, NTEU filed a Motion for Preliminary Injunction to prohibit DHS from implementing the new personnel regulations until the unions' legal challenges to those regulations was decided.

On July 14, 2005, NTEU argued the case for our Motion for Preliminary Injunction in U.S. District Court. After hearing NTEU's arguments and DHS' arguments, the Judge asked DHS to delay the August 1 scheduled implementation of the regulations for two weeks to allow her time to rule on the merits of our case. DHS agreed to the two-week delay, moving planned implementation to Monday, August 15.

I am very pleased to announce that late this evening, Friday, August 12, we received the decision of U.S. District Court Judge Rosemary M. Collyer in which she concurred with the majority of NTEU's arguments. Some of the legal analysis of the 57-page (CollyerDecision - pdf file) decision follows:

2. The court held that the regulations do not ensure collective

         bargaining. It held that a binding collective bargaining agreement

         is the sine qua non of any collective bargaining system. It further

         held that that requirement is absent from the DHS system. The judge

         went through all the various ways that agencies could avoid their

         obligations under a collective bargaining agreement to support her

         conclusion that this is not a collective bargaining system.

3. The court also held that the regulations illegally assign a role

         to the FLRA that is inconsistent with its status as an independent

         agency. The judge held that the Agencies (DHS and OPM) were without

         statutory authority to set the FLRA up as an appellate body

         reviewing decisions of the HSLRB. She also held that they had no

         power to require the FLRA--an independent investigatory and

         adjudicatory body--to review HSLRB decisions under a highly

         deferential standard of review. 

4. The court also agreed with us that the restrictive penalty

         mitigation standard is invalid. The judge found, first, that, as we

         had argued, the statutory provision requiring changes to Ch. 77

         procedures to "further the fair, efficient, and expeditious

         resolution of matters involving DHS employees" applied to the new

         mitigation standard. She then found that the restrictive standard

         does not satisfy the statutory requirement that it be "fair." She

         noted that the new standard would be so hard to meet that it would

         deprive the MSPB of any meaningful opportunity to review the penalty

         determination. This would effectively insulate the agency's penalty

         determination from review. 

5. There are a few points on which the court did not agree with us,

         including holding that, even though it is a strange result, the

         statute permitted DHS and OPM to change the procedures that apply to

         appeals before the MSPB and set the MSPB up as an appellate reviewer

         of decision of the mandatory removal panel. She noted that this

         outcome was "surprising", but that she found support for this in the

         statute.  

 6. The judge indicated that she would entertain an argument from the

         government that the injunction should be narrowed with respect to

         the labor relations subpart. She gave them an opportunity to

         identify parts of subpart E that are not inconsistent with her

         decision that could go into effect notwithstanding her ruling.

 

It is likely that DHS was preparing to implement the regulations effective Monday, August 15. This decision as written would preclude them from doing so. What is unclear is what, if any, action that DHS will take in the courts in light of this decision.

There could be more legal activity in response to this decision over the weekend. I will update you on Monday morning of any weekend happenings and of the most likely next steps.

In the meantime, please share this news with all NTEU members. This is a huge and important victory for NTEU and for DHS employees!