Donald J. Devine

November 11, 2005

Bureaucracy Reform Blocked

After an earlier union victory enjoining the Department of Homeland Security from implementing regulations to streamline its bureaucratic structure, federal unions have now sued the Department of Defense to enjoin their proposed reforms too.

Last month, Federal Judge Rosemary Collyer ruled that DHS Secretary Michael Chertoff could not streamline existing red tape personnel procedures unless collective bargaining with his unions resulted in a written contract agreeable to them. Worse, she made clear in her follow-up decision that the new rules cannot “repudiate DHS bargaining agreements.” In other words, DHS cannot implement any new rules to increase efficiency that are inconsistent with the old system largely created by union bargaining that Congress had just changed the law to transform, a classic judicial Catch 22. Now, DOD’s Donald Rumsfeld faces the same threat.

The statutory mission of both secretaries is to manage their offices in a manner that will assure the nation is secure. The unions and the judge had a different idea, based upon a Bill Clinton Executive Order, that federal sector management is a joint partnership of management and labor. Under Judge Collyer’s decision, concessions to employees for agreeable, pleasant and rewarding employment previously won in bargaining actually supersede DHS’ mission to protect the U.S. from terrorists, natural disasters and border penetration. That mission will now be delayed at DHS until the unions and the judge decide it is appropriate to proceed, making her, in fact, the homeland security secretary.

One of President George W. Bush’s first acts was to repeal the Clinton order on partnerships. Collective bargaining did not even obtain statutory authority until 1978 under President Jimmy Carter, who was forced to accept collective bargaining by a union-dominated Congress against his preferences, as the cost of obtaining any bureaucracy reform at all. Even so, he insisted that strong management rights limiting the scope of bargaining to non-mission matters be written into the law, with management guaranteed the right to implement their missions over every other consideration. Agency heads were even given full power to achieve their missions as they saw fit in emergencies, which Judge Collyer recognized.

So how did Judge Collyer come to a contrary conclusion? Primarily, she read private sector contract law into government management, as if she was still General Counsel at the private-regulating National Labor Relations Board—which she was until recently appointed to the court. But all government action is through law, unlike the private sector, and new law is in effect new contract terms. Judge Collyer, however, claimed that a system that permits “unilateral repudiation in contracts by one party is not collective bargaining at all,” which is basically true under private sector bargaining but not, until now, for government administration.

Still, one cannot only blame the judge. As she acknowledged, the law gave DHS the power to limit the scope of collective bargaining and perhaps even to redefine collective bargaining. Under Sec. Tom Ridge, DHS did not take advantage of that opportunity and tried to keep basically the same management system for matters that were excluded from bargaining, and only subject to consultation, as that covered by formal collective bargaining. In other words, in the traditional Washington manner, DHS was trying to have it both ways. It refused a direct argument that consultation should be the union role in the government, not second-guessing management—which is all that President Carter intended in signing the law.

In the announcement of its regulations, Deputy DOD Secretary Gordon England noted that that its statutory authority derived from a different part of the law than DHS’ providing that collective bargaining agreements are “unenforceable” if inconsistent with DOD regulations or implementing issuances. Office of Personnel Management lead official on these revisions, George Nesterczuk, noted that as far as the broader matter of overriding contracts is concerned, “It is a federal environment and not the private sector and federal contracts come under different precepts. The fact that agencies have needs that sometimes permit them to pierce provisions of contracts is kind of an accepted practice in the federal sector." Fortunately, DOD will also have a different judge.

Secretary Chertoff has 60 days to appeal. If he waits that long, he is proving the judge’s point that nothing very important will be affected by continued bureaucratic delay. Either the president demanded Congress reduce bureaucracy in the DHS and the DOD bills because it was essential for national security, or it was politics as the Democrats charged at the time. If it is important whether the unions run the department or the secretary does, it is important enough to appeal immediately and at the same time demand Congress end all ambiguity by quickly limiting the role of government unions to individual grievances and consultations; or Sec. Chertoff should declare an emergency and do it himself.