Home Media Center News Releases

Washington, D.C.—New personnel regulations for federal homeland security employees illegally overturn 30 years of workers’ collective bargaining rights, and the National Treasury Employees Union (NTEU) today asked a federal court to intervene and stop significant portions of the regulations from going into effect.

NTEU is leading a coalition of five federal unions, all of which represent employees in the Department of Homeland Security (DHS), in a federal suit challenging the legality of personnel regulations issued by DHS in January. The suit alleges that DHS and the Office of Personnel Management (OPM) far surpassed the authority Congress granted to them under the Homeland Security Act (HSA) by stripping away rights that Congress clearly intended these employees to keep. Today’s legal action seeks a summary judgment ruling in the case that would declare the regulations illegal as a matter of law. NTEU has asked for expedited consideration of its motion so the legality of the regulations can be resolved before they are implemented.

The suit, filed the same day the regulations were issued, charges that the regulations are “arbitrary, capricious and contrary to law.” In this case, the law which created the department, the HSA, clearly instructs the DHS secretary to ensure that DHS employees may bargain collectively.

But the final regulations do not contain any of the elements Congress has long recognized as necessary for collective bargaining. They do not: 1) provide for bargaining in good faith over conditions of employment; 2) give binding effect to agreements reached by the parties, and; 3) provide a neutral forum for deciding bargaining disputes.

“Eradicating employees’ rights to a voice in their workplace will have a dramatic effect on their work lives,” said NTEU President Colleen M. Kelley. “This will clearly impact the morale and effectiveness of employees charged with protecting the safety of our country and will subsequently interfere with both the ability of DHS to attract and retain talented and qualified personnel and to effectively carry out the mission of the department. It is simply not good policy.”

Under the regulations DHS has installed a “totally one-sided regime,” Kelley charged, under which DHS employees cannot bargain over the most basic and important conditions of employment. The regulations are also so filled with loopholes and opportunities for unilateral action by DHS that the department can use to easily evade whatever modest bargaining obligation the regulations might otherwise impose.

Along with violating the statutory requirement on collective bargaining, the regulations also violate federal law by imposing new duties and rules of operation on the Federal Labor Relations Authority (FLRA) and the Merit Systems Protection Board (MSPB). Both are independent agencies and beyond the jurisdiction of the DHS secretary.

The regulations attempt to assign to the FLRA “a meaningless and duplicative role” of reviewing the decisions of the internal and management-driven Homeland Security Labor Relations Board (HSLRB) for the sole purpose of taking “advantage of statutory provisions that provide the courts of appeals with jurisdiction over the FLRA’s decisions, thereby insulating the HSLRB from review in the district courts,” the motion alleges.

The MSPB provides federal employees with the right to appeal serious adverse actions taken against them. This is a critical check against unreasonable management actions. The DHS regulations, however, slant the process in favor of management and prohibit MSBP from mitigating unreasonable penalties so long as “the smallest sliver of justification exists.”

“This new standard,” Kelley said, “is seemingly designed to bring the number of mitigated penalties down to zero.”

The remedy for all these unlawful actions, Kelley said, is for the court to invalidate the illegal regulations and order that they be redone in a manner that is consistent with congressional intent—and, as a means of serving the interests of national security, be remade in a manner which recognizes the basic rights and continuing vital contributions to America of DHS employees.

NTEU is the largest independent federal union, representing some 150,000 employees in 30 agencies and departments, including 15,000 DHS employees.