When you think government bureaucracy cannot get worse, it always does. Mix in a serious policy matter such as security for the homeland, irresponsible federal sector unions and bureaucrats in black robes and it can rival Alice in Wonderland.
The latest fiasco started with 9/11 and the need to revise homeland protection, cumulating in the 2002 Homeland Security Act. Congress recognized the need to respond quickly to acts of terrorism and provided that the new Department of Homeland Security could modify its complex civil service procedures so it could act in emergencies without bureaucratic red tape and union nit-picking. In particular, it allowed DHS to act “notwithstanding” the provisions of the collective bargaining section of federal labor law, called Chapter 71.
The National Treasury Employee Union (NTEU) was not pleased, but it could not fight the matter in Congress given the atmosphere following the terrorist attack. When DHS issued its implementing regulations, however, NTEU was ready to sue.
Judge Rosemary Collyer—a former counsel to the National Labor Relations Board, which deals with private business—took the case and ended up placing injunction against DHS Secretary Michael Chertoff forbidding him from implementing his new personnel system until he had worked out a new system with DHS unions that resulted in a written contract agreeable to them. He cannot “repudiate DHS bargaining agreements,” she ruled, so DHS could not implement new rules inconsistent with the old system that Congress tried to change by law.
Chertoff appealed that injunction and has just received an even worse decision from the U.S. Circuit Court of Appeals for the District of Columbia. Like Judge Collyer, the Appeals decision author, Harry T. Edwards, was an expert on private labor law and simply applied it to the public sector. Unlike the District Court opinion, he at least considered the distinction between the two types of law, but became hopelessly confused in a circular argument that came to the conclusion that actually federal labor is the same as private labor law.
Edwards was forced to recognize an earlier opinion that the “principles of collective
bargaining” in the “federally regulated private sector” are not fully incorporated into the government sector. In the public sector, the principles are set by “federal labor policy,” where “Chapter 71 informs the meaning of the term,” specifically of collective bargaining. Yet, the HS Act had clearly allowed DHS to set its rules “notwithstanding” Chapter 71, so Judge Edwards simply ruled that using Chapter 71 to define collective bargaining is “perfectly consistent with the act’s authorization to proceed ‘notwithstanding’” Chapter 71. Why? Congress also said that DHS must allow “contemporary” collective bargaining. One section of the act cannot take “precedence” over another, he argued, so the scope of collective bargaining cannot be narrower than what the phrase “contemporary collective bargaining” implies—which Edwards said means it must be like that in today’s private sector. So, the two types of law are different but really amount to the same thing—see?
Edwards did concede that Chapter 71 sets narrower limits to bargaining in the government, but he overruled the district judge for allowing DHS to narrow it too severely, although he left a bit of room for contracts agreed to before the law was changed. DHS and the government were probably doomed when the case went to the D.C. Circuit rather than the Federal Circuit, where the judges understand federal government procedures.
Who cares about such bureaucratic gobbledygook? The problem is that DHS is supposed to protect the nation’s security. But this simple reality did not enter the judges’ consideration one whit. While the judges and lawyers diddle over fine points of law, DHS is tied in personnel knots in the face of potential emergencies.
Are employment rights really equal to protecting the homeland? Do employee demands for enjoyable, satisfying and participant employment trump protecting the U.S. from terrorists, natural disasters and porous borders? Do not government’s life-and-death functions that must be performed rapidly explain why public labor law is different from private law?
The legal problem in the government sector is that “collective bargaining” did not even obtain statutory recognition until 1978 under President Jimmy Carter, who was forced to accept a bargaining provision by a union-dominated Congress as the cost of any civil service reform at all. But he did at least insist on strong management rights limiting the scope of bargaining in the law, with management given the right to implement their missions over every other consideration. Agency heads were given full power to act in emergencies, which even the judges acknowledged, and the President retains the power to exclude sensitive agencies from any civil service or collective bargaining at all, as has been the case with intelligence agencies from the beginning.
Meanwhile, DHS remains immobilized under the current suffocating rules awaiting the next calamity. It is time to stop playing bureaucratic games. Secretary Chertoff must go to Congress and demand all ambiguity be ended immediately by specifically limiting collective bargaining in the government to individual grievances and consultation, at least for the important agencies such as DHS and the Department of Defense, which is facing a similar court challenge. If Congress fails to act expeditiously, the secretary should declare an emergency and implement his rules or the President should exercise his power and exclude both agencies from the law entirely.