Home Media Center News Releases

Washington, D.C.—The National Treasury Employees Union (NTEU) will ask a federal court to declare unlawful—and to prevent the implementation of—final personnel regulations stripping meaningful collective bargaining and other rights from all of the civilian employees of the Department of Homeland Security (DHS).

In a suit to be filed in U.S. District Court for the District of Columbia, NTEU will allege that the final regulations fly in the face of congressional intent expressed in the Homeland Security Act (HSA), which established the department.

NTEU President Colleen M. Kelley said that while NTEU's tireless work in the mandated "meet and confer" process clearly resulted in positive changes to the final system, particularly in the area of adverse actions, the regulations, nonetheless, remain seriously flawed. The union leader was especially critical of detrimental changes to the labor relations aspects of the final system.

"These regulations, which will muffle the important voices of front-line employees, will irreparably impair the ability of DHS to retain the experienced employees it has today and recruit a top-notch workforce in the future," Kelley said.

The HSA requires that the department’s personnel system “shall…ensure that employees may . . . bargain collectively . . . subject only to any exclusions from coverage or limitations on negotiability established by law.”

The final regulations, however, do just the opposite, stripping all DHS employees of longstanding statutory rights to bargain collectively and participate, through their elected union representatives, in decisions affecting them, the suit will allege.

President Kelley said those rights are replaced with a “one-sided regime under which the majority of important conditions of employment are not subject to negotiation—even as to the impact and implementation of management-initiated changes” on such working conditions.

Moreover, the union leader said, this new regime provides management with “an unlimited unilateral right to issue agency-wide directives to take what few matters remain negotiable off the bargaining table and/or to invalidate provisions of existing collective bargaining agreements.” The regulations also strip from employees meaningful rights to third-party decision-making on key matters affecting their work lives and place that responsibility, instead, in a DHS-controlled internal labor relations board.

The final regulations are also invalid in that they purport to impose certain new duties and rules of operation on both the Federal Labor Relations Authority (FLRA) and Merit Systems Protections Board (MSPB)—both of which are independent agencies and beyond any jurisdiction granted DHS by the law creating it.

In addition, the final regulations purport to preclude arbitrators and the MSPB from mitigating penalties imposed on employees accused of misconduct, even when they are unreasonable ones, unless an employee demonstrates that they are “wholly without justification.” The implementation of this grossly unfair new standard cannot be reconciled with the congressional directive that any departures from existing law be designed to further the fair, efficient and expeditious resolution of adverse action cases.

NTEU is the largest independent federal union, representing 150,000 employees in 30 agencies and departments, including more than 15,000 legacy Customs employees who are now part of the DHS Bureau of Customs and Border Protection (CBP).

NTEU will be joined in the suit against DHS and its secretary, Tom Ridge, along with the Office of Personnel Management (OPM) and its director, Kay Coles James, by the American Federation of Government Employees (AFGE), the National Association of Agriculture Employees (NAAE), and the National Federation of Federal Employees (NFFE).

NTEU Backgrounder

NTEU Suit Alleges DHS Regulations

Violate Law and Congressional Mandate

The National Treasury Employees Union (NTEU), joined by three other unions, will file a federal court suit seeking a determination that new personnel regulations covering employees of the Department of Homeland Security (DHS) are unlawful. The legal action, in U.S. District Court for the District of Columbia, will ask for an injunction preventing implementation of the regulations and a court order forcing the department to withdraw the regulations and issue new ones after appropriate collaboration with the unions.

The unions allege that the final regulations, published in the Federal Register, violate the Homeland Security Act (HSA), which created DHS, in several critical respects, including:

• Violating the specific congressional mandate in the Homeland Security Act that any new personnel system for DHS “ensure that employees may exercise their right to . . . . bargain collectively” (5 U. S. C. Sec. 9701 (b) (4) by creating a one-sided scheme in which the vast majority of important conditions of employment are not subject to negotiation even as to procedural matters , and under which DHS possesses the authority to unilaterally repudiate collective bargaining agreements it has already entered and take matters off the bargaining table by regulatory fiat

• Illegally conscripting two independent agencies—the Federal Labor Relations Authority and the Merit Systems Protection Board—to participate in the human resources systems, and interfering with their statutory independence by dictating the conditions of their participation

• Changing the standard used to decide whether penalties imposed on employees in misconduct cases should be reversed, by requiring that penalties be upheld, even if they are “beyond the bounds of reasonableness” so long as they are not “wholly without justification.”

The suit will name as defendants DHS and its Secretary, as well as the Office of Personnel Management (OPM) and its Director, and will be filed by NTEU, along with the American Federation of Government Employees (AFGE), the National Federation of Federal Employees (NFFE), and the National Association of Agriculture Employees.

The regulations cover some 110,000 civilian DHS employees. These are among its illegal provisions:

• The regulations effectively give DHS the authority to unilaterally repudiate existing collective bargaining agreements, thereby denying employees their collective bargaining rights.

• Moreover, they confer on management the unilateral right to render any matter non-negotiable by issuing an agency-wide regulation. The effect is to strip away, through regulatory fiat, any real obligation on the part of management to bargain collectively.

• The regulations drastically reduce the scope of matters subject to bargaining, thus departing sharply from the limits on negotiability in the federal sector established by law. 5 U.S.C. Sec. 9701 (b) (4).

This significant narrowing of the department’s obligation to bargain extends to negotiations over the impact and implementation of all “operational” management decisions, including negotiations over such basic working conditions as how work is assigned, where employees will work, and whether to contract out employees’ jobs. Such bargaining over the impact and implementation of management decisions is a well-established practice in both private and federal sector labor relations.

• The regulations also violate the law by transferring responsibility for resolving negotiability disputes from the Federal Labor Relations Authority (FLRA) to an internal DHS management-created and operated labor relations board, and by conscripting the FLRA’s participation, on a selective basis, in adjudicating a variety of disputes that may arise under the new labor relations scheme. The FLRA is an independent agency, whose jurisdiction under the law is confined to the resolution of matters arising under Chapter 71 of Title 5 of the U.S. Code. 5 U.S.C. Sec. 7105 (a). DHS and OPM are not authorized to impose obligations on the FLRA, or dictate how it will exercise its jurisdiction. In addition, transferring responsibility for adjudicating collective bargaining disputes to a board whose members are hand-picked by DHS itself, further departs from Congress’ requirement that the new system “ensure” collective bargaining rights for DHS employees.

• What’s more, DHS is purporting to regulate—in violation of its statutory authority—the workings of another independent federal agency, the Merit Systems Protection Board (MSPB). Under 5 U.S.C. Sec. 1204 (a), the MSPB has jurisdiction on matters before it only for purposes of taking “final action” on behalf of the government. The DHS regulations, however, purport to use the MSPB in an intermediate appellate capacity in reviewing decisions of the internal, management-directed DHS board dealing with so-called “mandatory removal offenses.” In addition, the DHS regulations illegally purport to control how the MSPB adjudicates its cases by limiting the amount of time employees have to file appeals, limiting their ability to obtain “discovery” before a hearing on the merits of their appeals, and providing for summary disposition of employees’ appeals, without hearings.

• The regulations establish an unfair and virtually unattainable standard that employees must meet in order to secure the mitigation of penalties that are proposed against them in disciplinary cases. Under existing law, the MSPB may mitigate a penalty that is “beyond the bounds of reasonableness.” The regulations, on the other hand, establish a standard for mitigating penalties under which DHS employees may be subjected to unreasonable penalties so long as those penalties are not “wholly unjustified.” This change will make it virtually impossible for employees to secure relief even in cases where a grossly disproportionate penalty is imposed for a minor offense.