Donald J. Devine

August 24, 2005

Judge Blocks Bush Work Reforms

As a Bush administration proposal to extend its historic reforms of the civil service to the whole government was circulating on Capitol Hill, Judge Rosemary Collyer shocked the federal management community by blocking its new workplace rules at the Department of Homeland Security the day they were to go into effect, saying they did not provide for true collective bargaining.

Judge Collyer held that the DHS plan “does not lead to enforceable contracts and thus fails to comply with the direction of Congress to ensure employee bargaining rights” guaranteed elsewhere in the law. She objected to the fact that the secretary of DHS could override contract provisions on his own without an appeal to a supposedly impartial Merit System Protection Board if he found them harmful to security, saying “a contract that is not mutually binding is not a contract.” Yet, Congress specifically gave DHS the right to limit federal bargaining rights obviously knowing of the existence of the earlier legal provisions, which by no means were unlimited in any event.

The federal government has never had full collective bargaining in the private sector sense. Wages have never been subject to negotiation and bargaining over working conditions has been tightly constricted by strong “management rights” provisions in the law, reinforced over the years by decisions of the Federal Labor Relations Authority, with exceptions for emergencies in many cases. The problem was not that the unions would prevail but that important decisions were endlessly delayed, often dangerously so. While President Bill Clinton weakened these rights somewhat during his presidency, this was accomplished by interpretation rather than by Congressional change in the law.

It was precisely to overrule the bureaucratic thinking expressed in Judge Collyer’s decision that the president and Congress adopted the DHS reforms and later extended them to the Department of Defense. The whole idea was to put the security of the nation before the rights of employees. Over the years, government employees came to believe they could place their interests before those of the public in making governmental decisions. The threat of 9/11 was supposed to change that thinking and did move Congress to pass legislation to place the missions of defense and homeland security before the comfort of federal employees.

In response to a new national consensus to make government work more efficiently, at least in emergencies, President George W. Bush began transforming the civil service by focusing on making work rules easier to adopt and less subject to bureaucratic appeals, and making pay based on performance rather than seniority. The departments of Homeland Security and Defense reforms allowed supervisors to take action against nonperforming, underperforming and adversely performing employees, limited the endless process of bureaucratic appeals, and restricted the scope of bargaining by federal unions, which unlike those in the private sector are not restrained by the need to make a profit in order to pay employee salaries.

Not surprisingly, it was five unions that brought the case to court. But why are they so afraid of efficiency? Actually, in 2004, 12,573 competitions were held between private contractors and federal employees to see who could perform the work better—and the Feds won 91 percent of the tests. Yes, the competitions are skewed toward the government (primarily by under-costing the generous pension system) and are decided by a hardly neutral federal official, but even under these conditions, most employees and all unions oppose efficiency reforms, including the competitions themselves. Existing awards programs are manipulated to spread the rewards, not compensate the super performers who do the majority of the good work. In the last year data are available, 61 percent of the 1.6 million full time civilian employees received awards, up to 90 percent winning bonuses in some agencies.

It is proponents of big government who should be demanding better public management. Some, like President Jimmy Carter, are consistent and do so. But most seem to fear or favor federal employees—who vote in every Congressional district--and the unions more than making their programs work. Fortunately, Judge Collyer did not overrule the performance pay provisions at DHS and one suspects she will be overruled on appeal regarding collective bargaining.

Judge Collyer simply seems unaware of the profound differences between government and private personnel law. She is new on the job and her previous experience was at the National Labor Relations Board, which regulates the private sector. Even if overturned, it is the employee rights at any cost mindset behind her decision that badly needs change and that transformation must go well beyond one uninformed judge.