WASHINGTON – Labor unions asked a federal court Wednesday to force the Department of Defense to include them before moving ahead on personnel rules that would establish a pay-for-performance system for federal workers, among other changes.
In a lawsuit filed in U.S. District Court in the District of Columbia, the unions said the department and the Office of Personnel Management violated the 2003 law that authorized the new system by leaving employee representatives out of its development. The proposed rule changes were unveiled Feb. 14.
“This wasn’t even collaboration,” said Mark Roth, an attorney for the American Federation of Government Employees. “This wasn’t even consultation.”
An official with the new National Security Personnel System declined to comment on the lawsuit, but he said the Defense Department did include the unions in the process.
“The proposed NSPS regulations are the product of a broad-based, collaborative effort across the Department that began last year,” Bradley Bunn said in a prepared statement. “This included a number of meetings with employee representatives involving extensive and fruitful discussions on potential options for the design of the system.”
When it published the proposed rules, the Defense Department acknowledged that it is legally obliged to include employee representatives as it begins implementing the program, but said it had already met with leaders from 41 unions.
The proposed system would affect civilian employees of the Defense Department.
The Defense Department announcement followed by several weeks the finalization of similar rules at the Department of Homeland Security. Both agencies have argued that their personnel management systems need to be more agile to help them meet their national security missions.
“The attacks of Sept. 11 made it clear that flexibility is not a policy preference. It is nothing less than an absolute requirement,” the Pentagon wrote when it announced the changes in the Federal Register.
Hiring under the current Defense Department system is “cumbersome,” the announcement said, and salaries are the same for poor and strong workers. The labor system “encourages a dispute-oriented, adversarial relationship between management and labor.”
The unions have also filed suit against the Homeland Security rules. But while the challenge to the Homeland Security rules came after they were finalized, the unions are asking the court to step in during the 30-day public comment period on the Defense Department rules.
“This is very unusual,” Roth said of suing before the final rules are set.
Officials from the 10 unions that jointly filed Wednesday’s lawsuit said they were forced to go to the courts for help because the Pentagon had already sidestepped the congressional guidelines and shut them out of the process of building the proposed system.
The suit against the Department of Homeland Security, by contrast, contends that the agency’s new personnel rules themselves are unlawful because they strip employees of collective bargaining rights.
“It’s sad,” said Don Hale, president of AFGE Local 2367 in West Point, N.Y., of the lawsuit against the Defense Department. But the department has been “less than honest” in its dealings with the unions, Hale said.
He acknowledged that labor leaders have their work cut out for them. But the pay-for-performance system and reduced rights for employees are harmful for employees, and have to be challenged, he said.
“We’re going to lose a lot. We understand that,” Hale said. But he added that, “This country doesn’t deserve that kind of civil service system.”
An OPM spokesman said the agency would not comment on the pending lawsuit as a matter of policy.
-30- CNS 02-23-05