Pentagon again delays new labor rules upon judge's request

By Karen Rutzick

The Defense Department has delayed the rollout of its new labor relations system until March 1 in response to a judge's request that he be given more time to consider a lawsuit challenging the system.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia heard arguments Tuesday in a lawsuit filed by a coalition of federal employee unions against the National Security Personnel System.

NSPS would supplant the decades-old General Schedule pay system with broad paybands that would allow supervisors to use greater discretion in hiring and employee compensation. It also would tie annual raises to a system of rigorous performance reviews. At issue in the lawsuit, however, are other portions of the NSPS regulations that curtail collective bargaining rights for Defense employees.

Sullivan said he needed until March to decide the case on its merits. The department had already agreed to stall the system until Feb. 1 because of the lawsuit. Lawyers for the Pentagon agreed to the second delay, with a few exceptions.

Most notably, the government said it would move forward with setting up the National Security Labor Relations Board as planned. The NSLRB would replace the governmentwide Federal Labor Relations Authority in hearing labor disputes. Its members would be appointed by the Defense secretary with some consultation from unions.

Justice Department lawyer Joseph Lobue, who argued on behalf of the Defense Department and also represented the Homeland Security Department last summer in a similar case, said the government would appoint a chairman, hire staff and complete regulations on the structure of the NSLRB.

The NSLRB would not hear any labor disputes until March 1, Lobue added. Union lawyers agreed to the deal, although they said they will continue to contest the legality of the new board in their lawsuit.

The department said it will retain the right to continue training employees on the workings of NSPS and developing further details of the system. Recently, Defense announced a significant delay and scaling back of the first installment of the human resources portion of the system to allow more time to work on it.

Sullivan heard more than three hours of arguments on NSPS collective bargaining procedures, and called the Pentagon's ability to waive previously negotiated collective bargaining agreements "the principle question concerning the validity of the labor relations system."

In August, D.C. Circuit Judge Rosemary Collyer ruled that DHS' similar labor relations system was illegal, in large part because of this very ability.

Sullivan said he had read Collyer's decision closely. But both sides pointed out that Congress passed different laws to authorize the Defense and Homeland Security systems, and the departments have developed different regulations to implement them.

"It's a very separate case," Lobue said. "It's also a different regulation. The [DHS] regulation authorized the agencies to impose limitations on bargaining by any manager in the agency. Here the issuances that we're talking about can only be promulgated by a discrete group of people. You don't have a situation where the danger is a lower level agency official can impose a limitation on bargaining."

Also at issue in the case is the process by which the department developed the NSPS regulations. Government lawyers said the agency met its legal obligation to meet and confer with unions by holding a number of meetings and by receiving input to the regulations when they were published in the Federal Register.

But the unions argued that the meetings served no purpose because the agency ignored their comments.

Sullivan could rule that because the process was illegal, the regulations are voided in their entirety.