Judge Runs Homeland Security

Who runs homeland security, Secretary Michael Chertoff or Federal Judge Rosemary Collyer?

Judge Collyer certainly acts like she is in charge. As Congress and the Executive escaped town for a long weekend, she upped her preliminary injunction by effectively enjoining the Department of Homeland Security from proceeding at all with its plans to create an efficient “mission-focused” department out of its old tired bureaucracy--tied down by procedures more focused on employee contentment than results.

Judge Collyer ruled that Sec. Chertoff can manage his department only after collective bargaining with its unions results in a written contract agreeable to them. Worse, she makes clear in this final decision that the new rules cannot “repudiate DHS bargaining agreements.” In other words, DHS cannot implement any new rules to increase efficiency that re inconsistent with the old system largely created by union bargaining that Congress had just changed the law to replace, a classic judicial Catch 22.

Who manages the operation might not make much difference except that Chertoff’s statutory mission is to guard the nation’s security. The DHS 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 until the unions and the judge decide it is appropriate to proceed, making her, in fact, the secretary.

One of President George W. Bush’s first acts was to repeal the Clinton order on partnerships. On its face it is a preposterous claim that the safety of the homeland must be approved by unions seeking accommodations for members. In fact, the Clinton executive leadership below the president refused to implement the order in many agencies, including the ones responsible for national security. Moreover, President John Kennedy created collective bargaining out of whole cloth in 1961, by a simple Executive Order, not legislation. Even he fully excluded the intelligence agencies and FBI, while succeeding presidents used their statutory power to exclude additional critical agencies.

Collective bargaining did not 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 getting 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 even 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 were still General Counsel at the private-regulating National Labor Relations Board—which she was until recently appointed to the court under President Bush. 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 really 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 to concede in signing the law.

Secretary Chertoff did not even criticize the original Collyer decision, undoubtedly at the suggestion of his lawyers, presumably the same ones pushing procedure over substance during Katrina. If in the face of such a national disaster, a secretary cannot show passion that his central mission is being compromised by a court decision (admittedly one his predecessor’s subordinates could have avoided), how could the public or even the judge understand that this business as usual could well lead to executive immobility in the face of a crisis? Certainly, he must stand up now.

Interestingly, the Department of Defense issued its similar proposed regulations within a few days of the DHS court decision. At the announcement Deputy DOD Secretary Gordon England noted 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 specifically stated that as far as breaking 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." In any event, it is difficult seeing Secretary Donald Rumsfeld taking similar judicial activism lying down and, thankfully, he has 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 that 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.

Donald Devine, Editor.

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