Defense unions optimistic about pay system

Despite the odds, opponents of NSPS say they will seek a remedy in the Supreme Court

Despite recent legal setbacks, the lead attorney for unions representing Defense Department employees said he believes the Supreme Court will agree to hear the unions’ case against DOD’s National Security Personnel System.

“We’re not going to spend thousands and thousands of dollars on a useless exercise,” said Joe Goldberg, assistant general counsel for litigation at the American Federation of Government Employees. “If we didn’t think we were right and we didn’t think we had a chance, we wouldn’t do it. But we obviously think we are right, and we obviously think there is a chance.”

On Aug. 10, the U.S. Court of Appeals for the District of Columbia Circuit denied a motion by AFGE and the United Department of Defense Workers Coalition for a full-court review of its earlier decision to overturn a lower court’s ruling and uphold NSPS provisions that curtail collective bargaining. Union officials announced three days later that they would ask the Supreme Court to hear the case.

AFGE National President John Gage said taking the case to the Supreme Court presented an opportunity to tackle the issues head on. However, union officials said they know the odds are against the Supreme Court reviewing the case. Of about 11,000 petitions filed annually requesting the court to consider a case, fewer than 100 are successful.

“We can do the simple math to know that very few cases are accepted by the Supreme Court,” Goldberg said. “That’s the simple fact of it. But we’re fighting for our members and for what we believe is the correct interpretation of the law.”

In the appeals court’s 2-1 decision in May to uphold the NSPS provisions, Judge Brett Kavanaugh wrote that under the National Defense Authorization Act for Fiscal Year 2004, DOD has the authority to curtail collective bargaining for the department’s civilian employees — but only through November 2009. After that, DOD must permit collective bargaining consistent with the Civil Service Reform Act of 1978. Thus, DOD has acted within its statutory authority, the majority of judges determined.

Their decision overturned a February 2006 ruling by U.S. District Court Judge Emmet Sullivan that struck down NSPS provisions related to collective bargaining, labor relations, independent third-party reviews, adverse actions and DOD’s proposed internal labor relations panel.

Goldberg said that in appealing the case to the Supreme Court, union officials are assuming that the court “would see that our reading and Judge Sullivan’s reading of the law is the correct reading, and the two [appeals court] judges who issued the decision were incorrect.”

Attorneys for the unions planned to file a motion with the appeals court that would prevent DOD from implementing NSPS’ labor relations provisions until the Supreme Court decides whether to accept the case.

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