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Washington, D.C. — The union representing some 21,000 front-line homeland security employees called on the Merit Systems Protection Board (MSPB) to make fairer to workers its interim regulations implementing the board’s role in processing adverse personnel action appeals brought by employees of the Department of Homeland Security (DHS).

In particular, NTEU urged the MSPB “to refrain from adopting” a DHS penalty mitigation standard that will make it very difficult for DHS employees to persuade the Board that the agency’s penalty is too harsh.

In written comments to the board, NTEU said the DHS standard “has been deemed unfair, and, therefore, inconsistent with the Homeland Security Act” by U.S. District Court for the District of Columbia in a successful suit brought by NTEU resulting in an injunction against implementation of key parts of the DHS personnel regulations. Although that aspect of the district court’s decision was ultimately vacated on ripeness grounds by the court of appeals, NTEU said, “the district court’s legal analysis of the standard itself was not questioned and remains sound.” MSPB adoption of a penalty mitigation standard “that departs from the approach judges have used for over 25 years…is wasteful and unwarranted.”

On other matters, NTEU:

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Continued to object to the DHS regulations, now incorporated into MSPB regulations, creating a procedure for addressing so-called mandatory removal offenses which DHS has not yet identified. Not only is the board’s adoption of these procedures “premature,” the union said, “we believe that these cases can be effectively prosecuted through the regular appeals procedures, which have greater credibility among the workforce”;

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Supported the use of ‘settlement judges’ to handle adverse action matters, but urged that such judges be available at the request of either party, rather than only upon a joint request, which essentially would provide one party with veto power; and

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Objected to board adoption of several DHS regulations, including a two-year initial service period for appeals of adverse actions, rather than the one year of continuous service applicable to most other federal employees; an unjustified reduction by one-third in the time a DHS employee has to file an appeal; the use of summary judgment when a judge determines there are no material facts in dispute—a departure from long-standing MSPB policy; the use of telephone hearings when there are material facts in dispute—another departure from board policy; and several other procedural issues.

NTEU is the largest independent federal union, representing 150,000 employees in 31 agencies and departments.