Judicial roadblock slows MaxHR

Unions happy with decision blocking some DHS personnel rules

A federal judge has voided parts of the Homeland Security Department's proposed personnel system, ruling that it violates collective bargaining rights and other employee protections. DHS officials have 60 days to appeal the ruling.

On Aug. 12, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia blocked two main elements of MaxHR, the department's new personnel system. In her ruling, Collyer said those parts eliminate rights and protections that Congress expressly wanted DHS employees to have under the Homeland Security Act of 2002, which created the department.

Union officials representing thousands of DHS employees said they were ecstatic about the ruling because they feared that MaxHR would have severely undermined workers' rights.

"This decision validates [the National Treasury Employees Union's] arguments that this administration, DHS and [the Office of Personnel Management] far overstepped the boundaries and abused the discretion given to them by Congress," said Colleen Kelley, president of NTEU, which represents more than 14,000 DHS workers.

But James Carafano, senior fellow at the Heritage Foundation and a supporter of MaxHR, said the unions are sacrificing national security for their own parochial interests. He said DHS should be able to use wide latitude in personnel matters, such as transferring workers to areas where they may be needed during a national emergency. Congress gave the department this ability, he said, so that it could move quickly to protect the country from terrorist threats.

Collyer wrote that MaxHR would gut the unions' ability to collectively bargain by giving DHS officials the right to arbitrarily negate any part of bargaining agreements. She also said that an element of the new program would strip the Federal Labor Relations Authority of its role as an independent arbiter in labor disputes.

Collyer wrote that the proposed rules must not prevent the Merit Systems Protection Board from hearing appeals of adverse actions by DHS against employees for misconduct. That aspect of the rules would violate laws requiring that any alterations in personnel policy must make it fairer, she wrote.

Collyer's decision came in response to a lawsuit that five unions filed in February challenging the final version of MaxHR, which DHS officials have been working on for more than two years. In July, Congress delayed implementation of the rules by two weeks, to Aug. 15, to give the court time to rule on whether they violate the act.

On Aug. 18, union and department officials met to discuss what will happen next. "It was a good sign that DHS met with us this quickly," said Terry Rosen, a labor relations specialist at the American Federation of Government Employees who attended the meeting. AFGE represents 22,000 DHS workers.

DHS is still determining its strategy, said Larry Orluskie, a DHS spokesman.

Although some parts of MaxHR have been voided, others are moving forward. Orluskie said that among the most important are the system's pay-for-performance rules for employee raises and promotions. Those rules are scheduled to take effect Oct. 1, he added. Currently, DHS employees' pay and promotions are based on the 15-grade General Schedule pay scale that federal agencies have used for 50 years.


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Recent ruling won't stop DOD

The Defense Department is finalizing the details of a new set of work rules for civilian employees that DOD officials say they intend to implement later this year.

Spokeswoman Joyce Frank said the National Security Personnel System (NSPS) will proceed despite a judge's recent ruling that blocked portions of the Homeland Security Department's new MaxHR personnel system. Labor experts say NSPS is similar to DHS' MaxHR in at least two ways:

  • NSPS would expand nonnegotiable management rights and decrease unions' influence.
  • NSPS' pay-for-performance rules would replace the General Schedule salary scale with broad pay bands that would be more flexible.

Unions opposed to those elements in NSPS and MaxHR have sued DOD and DHS, respectively, to change them. A U.S. District Court judge issued a decision Aug. 12 in the DHS case. A different judge in the same court has been assigned to hear the DOD case.

— Michael Arnone

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