In other words, DHS cannot make any new efficiency rules inconsistent with the old system largely created by union bargaining Congress changed the law to transform. This is a classic judicial "Catch 22." Now, Defense Secretary Donald Rumsfeld faces the same threat.
Both secretaries' statutory mission is to manage their offices in a way to assure national security. The unions and the judge had a different idea, based on a Bill Clinton executive order, that federal management is a joint management-labor partnership.
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 Bush's first acts was to repeal the Clinton order on partnerships. Collective bargaining had no statutory authority until President Jimmy Carter was forced in 1978 to accept collective bargaining by a union-dominated Congress against his wishes, as the cost of obtaining any bureaucracy reform at all. Even so, he insisted that strong management rights be written into law limiting the scope of bargaining to non-mission matters, with management guaranteed the right to carry out 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 were 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 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 power to limit the scope of collective bargaining and perhaps even to redefine it. Under Secretary Tom Ridge, DHS did not take advantage of that and basically tried to retain the same management system for matters excluded from bargaining, and only subject to consultation, as those covered by formal collective bargaining.
In other words, in true Washington fashion, DHS tried 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 President Carter intended in signing the law.
In announcing regulations, Deputy Defense Secretary Gordon England noted its statutory authority derived from a different part of the law than DHS', providing collective bargaining agreements are "unenforceable" if inconsistent with Defense 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 agencies have needs that sometimes permit them to pierce provisions of contracts is kind of an accepted practice in the federal sector." Fortunately, the Defense Department also will have a different judge.
Mr. 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. Otherwise, Mr. Chertoff should declare an emergency and do it himself.