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Washington, D.C.—Acting as lead counsel for a coalition of five unions, attorneys from the National Treasury Employees Union (NTEU) today forcefully argued for a preliminary injunction that would prohibit the Department of Homeland Security (DHS) from implementing new personnel regulations until the unions’ legal challenges to those regulations are decided.

At the end of the hearing the court asked if DHS would agree to delay implementation of the regulations until Aug. 15. Doing so, U.S. District Court Judge Rosemary M. Collyer said, would allow her to issue a decision on the merits of the case, rather than just issuing a decision on the motion for a preliminary injunction. Government attorneys will respond to her request tomorrow.

Over the course of a nearly two-hour hearing in federal court, NTEU presented its arguments that the regulations violated that statute because the labor relations scheme they established does not ensure employees’ rights to bargain collectively.

Judge Collyer questioned the government thoroughly on three important matters central to the case: the issue of ensuring collective bargaining for DHS employees, as Congress clearly intended; the issue of the DHS overstepping its authority in assigning duties to the Federal Labor Relations Authority (FLRA), an independent federal agency; and, the issue of reducing the authority of the Merit Systems Protection Board (MSPB) to mitigate disciplinary penalties.

Today’s hearing was the latest stage in the federal suit the unions filed alleging that certain aspects of the personnel regulations violate federal law in that the regulations far exceed the authority granted to the department by Congress in the 2002 Homeland Security Act (HSA)—the legislation that created DHS.

Judge Collyer honed in on a central union argument—that the regulations do not allow for full collective bargaining because “any authorized agency official” could issue a directive that would nullify a fully-negotiated provision in a collective bargaining agreement. That is, the judge said an “extraordinary grant of authority.”

“Collective bargaining is more than just a willingness to negotiate a contract,” Judge Collyer said, “it’s a collective bargaining relationship.”

She noted NTEU’s contention that a core principle of a collective bargaining system is an independent adjudicator of labor management disputes and questioned whether the structure DHS is establishing provides for that review. The personnel regulations establish an internally-appointed labor-management board whose decisions would receive limited review from the FLRA. Judge Collyer said she was “really concerned” about whether DHS has overstepped its bounds in this instance, as NTEU contends.

On the third issue, regarding mitigation of penalties, NTEU and the coalition of unions argued that the personnel regulations illegally set a standard that is at odds with the HSA and virtually impossible to meet. Judge Collyer noted that it was “one heck of a standard to overcome.”

NTEU President Colleen M. Kelley has been leading the effort to ensure that the civil service and collective bargaining rights of DHS employees are preserved.

“Our questions about the legality of the regulations must be answered before the rules are implemented,” Kelley said. “No one will be served, including the department and the American public, by a federal agency, charged with protecting the security of our homeland, operating contrary to federal law.”

NTEU is the largest independent federal union, representing some 150,000 employees in 30 agencies and departments, including some 14,000 in DHS. Together, the five plaintiff DHS unions represent some 60,000 agency employees.