Lawyers for Defense, Unions Detail Their Differences for Federal Judge

The rules, as Sullivan put it yesterday, are "extremely important, extremely complicated." To limit confusion, union and Justice Department lawyers used slide shows to make their points to Sullivan.
Sullivan asked the lawyers to shed light on what Congress intended in creating the National Security Personnel System, whether Pentagon officials had honored a mandate to collaborate with unions on the development of the rules, and whether the Pentagon could waive civil service law on union rights and take numerous issues off the bargaining table.
Daniel M. Schember , representing the union coalition, and Joseph W. LoBue , a Justice lawyer representing the Pentagon and the Office of Personnel Management, jousted over whether rules on labor-management negotiations must be read as a whole. One part calls for ensuring that Defense employees retain their bargaining rights, but a second part gives the department broad powers to limit labor rights and to override union contracts.
Schember pointed to statements by senators, such as Susan Collins (R-Maine) and Carl M. Levin (D-Mich.), that a compromise reached between the House and Senate did not allow the Pentagon to waive the basic requirements of civil service labor law.
LoBue said Congress knew it would be allowing Defense to set up a different system and that the judge should treat part two of the rules as an exception to the first part.
When the judge asked about the process used to shape the new rules, Joseph Goldberg , representing the American Federation of Government Employees, said the Pentagon had not followed the law, which calls for "meaningful discussions" and the participation of unions in revising workplace rules. Goldberg said the Pentagon "went dark" on the unions and drafted a regulation without their involvement.
Sullivan asked why the Pentagon had waited 60 days to start talks with unions on the new rules and whether they had a seat on the design team. LoBue said the Pentagon had provided the unions with ideas and draft proposals and had given them time to comment when a proposed rule was published. The "meet and confer" period was not a sham, LoBue said, contending that unions had the opportunity to be heard.
Hovering over the case is a ruling by one of Sullivan's colleagues on the U.S. District Court concerning workplace changes planned at the Department of Homeland Security. Judge Rosemary M. Collyer blocked the department's new labor rules because they fell short of guaranteeing bargaining rights.
Like Defense, Homeland Security would permit department officials to override any provision in a union contract by issuing a policy directive. Homeland Security has appealed Collyer's decision.
LoBue told Sullivan it is inappropriate to compare the cases, because Congress wrote a different law for Defense that included a provision saying that the new rules "shall supersede" collective bargaining agreements. Homeland Security was not given such congressional instruction, LoBue said.
In addition, he said, the Pentagon regulation allows only a relatively few senior officials to issue NSPS directives, eliminating the possibility that a lower-level manager could curb bargaining.
The case could turn on how the judge views the new rules in relation to national security. LoBue argued that Defense needs maximum flexibility to respond to terrorist threats and reassign civil service employees quickly to support the military. Schember pointed out that the government has not identified any national security problems that would require the jettisoning of union rights.
Sullivan listened, but noted, "This is a different world since 9/11."
He promised to reach a decision by March 1.

New DOD Personnel System Delayed
Wednesday, January 25, 2006; A17
The Defense Department agreed yesterday to delay implementation of its new personnel system until at least March 1 to give a federal judge time to decide whether the new rules pass legal muster.
Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia told lawyers for the department and for a coalition of federal employee labor unions that it would take him at least that long to sort through the issues at the heart of the unions' lawsuit against the new system.
"It's an extremely important case and it is extremely complex," Sullivan said yesterday during a three-hour hearing.
The National Security Personnel System, which would cover 650,000 civilian employees, would replace the familiar 15-grade General Schedule pay system with one in which raises are linked to annual performance evaluations. The new work rules also would curtail the power of labor unions and make it easier to hire, promote and discipline employees -- all in the name of making the Defense Department more nimble in the struggle against terrorism.
The unions contend that the new rules would gut collective bargaining in violation of federal law. And they maintain that department officials did not live up to their obligation, spelled out in the 2003 law that paved the way for the changes, to consult with employees' representatives in developing a new labor management system.
"They simply ignored the explicit requirement of the law and did what they wanted to do," said Joe Goldberg, a lawyer for the American Federation of Government Employees, the lead union.
A similar lawsuit against the Homeland Security Department has delayed the implementation of a new pay system there by as much as a year. In August, U.S. District Judge Rosemary M. Collyer faulted the new DHS system for undermining employees' rights to collective bargaining, and blocked implementation of new rules governing labor relations and employee appeals. DHS has appealed.
Joseph Lobue, a lawyer for the Justice Department, told Sullivan that the DOD personnel system was "very different from Judge Collyer's case." He added: "She was faced with a very different statue. . . . These agencies have explicit authority to do just what they did."
Agreeing to the delay was a small concession. The DOD already had pushed back the start date of the new system to April 30. It will continue to develop a new internal labor relations board, however.
-- Christopher Lee

Pentagon again delays new labor rules upon judge's request
By Karen Rutzick
[email protected]
The Defense Department has delayed the rollout of its new labor relations system until March 1 in response to a judge's request that he be given more time to consider a lawsuit challenging the system.
Judge Emmet Sullivan of the U.S. District Court for the District of Columbia heard arguments Tuesday in a lawsuit filed by a coalition of federal employee unions against the National Security Personnel System.
NSPS would supplant the decades-old General Schedule pay system with broad paybands that would allow supervisors to use greater discretion in hiring and employee compensation. It also would tie annual raises to a system of rigorous performance reviews. At issue in the lawsuit, however, are other portions of the NSPS regulations that curtail collective bargaining rights for Defense employees.
Sullivan said he needed until March to decide the case on its merits. The department had already agreed to stall the system until Feb. 1 because of the lawsuit. Lawyers for the Pentagon agreed to the second delay, with a few exceptions.
Most notably, the government said it would move forward with setting up the National Security Labor Relations Board as planned. The NSLRB would replace the governmentwide Federal Labor Relations Authority in hearing labor disputes. Its members would be appointed by the Defense secretary with some consultation from unions.
Justice Department lawyer Joseph Lobue, who argued on behalf of the Defense Department and also represented the Homeland Security Department last summer in a similar case, said the government would appoint a chairman, hire staff and complete regulations on the structure of the NSLRB.
The NSLRB would not hear any labor disputes until March 1, Lobue added. Union lawyers agreed to the deal, although they said they will continue to contest the legality of the new board in their lawsuit.
The department said it will retain the right to continue training employees on the workings of NSPS and developing further details of the system. Recently, Defense announced a significant delay and scaling back of the first installment of the human resources portion of the system to allow more time to work on it.
Sullivan heard more than three hours of arguments on NSPS collective bargaining procedures, and called the Pentagon's ability to waive previously negotiated collective bargaining agreements "the principle question concerning the validity of the labor relations system."
In August, D.C. Circuit Judge Rosemary Collyer ruled that DHS' similar labor relations system was illegal, in large part because of this very ability.
Sullivan said he had read Collyer's decision closely. But both sides pointed out that Congress passed different laws to authorize the Defense and Homeland Security systems, and the departments have developed different regulations to implement them.
"It's a very separate case," Lobue said. "It's also a different regulation. The [DHS] regulation authorized the agencies to impose limitations on bargaining by any manager in the agency. Here the issuances that we're talking about can only be promulgated by a discrete group of people. You don't have a situation where the danger is a lower level agency official can impose a limitation on bargaining."
Also at issue in the case is the process by which the department developed the NSPS regulations. Government lawyers said the agency met its legal obligation to meet and confer with unions by holding a number of meetings and by receiving input to the regulations when they were published in the Federal Register.
But the unions argued that the meetings served no purpose because the agency ignored their comments.
Sullivan could rule that because the process was illegal, the regulations are voided in their entirety.

By Anne Harding
NEWS EPA decision on human testing expected soon
Some agency scientists say loopholes in drafted law would allow unethical pesticide studies

[Published 24th January 2006 05:35 PM GMT]

The initial draft of the Environmental Protection Agency’s first-ever rule on human testing of pesticides has drawn sharp criticism from public interest groups, members of Congress, and scientists within the agency itself, who argue that the law would not protect vulnerable groups.

The rule “looks like it was written by the American Chemical Council,” Jeff Ruch, executive director of Public Employees for Environmental Responsibility, told The Scientist.

The EPA issued the 30-page draft last September after Congress suspended human testing of pesticides in August, until appropriate legislation was in place to protect test subjects. The final version of the rule is due by the end of this month.

Ruch and other critics say the draft leaves the door open to unethical conduct. “I am somewhat dismayed that this rule was presented in such a complex -- and I would have to say, tricky -- way,” said Suzanne Wuerthele, a regional toxicologist for the EPA. Wuerthele belongs to the American Federation of Government Employees (AFGE), the union representing EPA scientists, which stated in a December letter to EPA chief Stephen Johnson that the law “could create serious ethical and liability problems” for its members.

For instance, the draft waives consent requirements for research in vulnerable children. It states that researchers don’t need consent for populations for whom “parental or guardian permission is not a reasonable requirement to protect the subjects (for example, neglected or abused children),” as long as “an appropriate mechanism for protecting the children who will participate as subjects in the research is substituted.”

The draft law also notes that the EPA could accept data from “ethically deficient” research conducted before the new law takes effect if it is deemed necessary to “protect public health.” However, the draft does not define “public health,” and some critics have warned that it could be interpreted extremely loosely. The new draft also defers proposing rules “providing additional protection for prisoners.”

Also, Ruch points out, the law only covers intentional dosing studies, so that studies like the Children’s Health Environmental Exposure Research Study– in which researchers would have paid parents to spray pesticides near their children’s beds, funded by $7 million from EPA and $2 million from the chemical industry – would still be permitted. The study raised outrage last year and led Democratic lawmakers to threaten to derail Johnson’s confirmation as EPA head if it was not cancelled. EPA had argued that the study was ethical because the parents claimed they would have been using the pesticides anyway.

The proposed rule “appears to be an attempt to rationalize old studies that have a number of ethical problems and rationalize their use to expanding markets for pesticides,” said Dave Christenson, president of the Denver AFGE.

Wuerthele noted that the draft rule also does not address the scientific validity of human tests, going against the recommendations of the National Academy of Sciences, presented in a 2004 report. “If a study’s not scientifically valid, by definition it is unethical, because it is merely toying with the subjects, ” Wuerthele said.

For industry, the issue at the heart of the new rule is whether human tests that have already been performed can be used to re-register pesticides, according to Mark Maier, health science and policy leader for pesticide industry group CropLife America. Under the Food Quality Protection Act (FQPA), all pesticides must be re-registered using current standards by August 2006, or their registration will be cancelled.

The FQPA has made human testing more attractive to the pesticide industry, according to critics—and the NAS, in its 2004 report--because testing on humans allows manufacturers to sidestep the 10-fold safety requirement the act demands for animal toxicity tests. But Maier points to a 2001 study that found human tests result in less stringent requirements just two-thirds of the time.

“Neither EPA or CropLife members have any intention under any circumstances of testing someone that cannot give consent,” Maier added.

An EPA spokesperson deferred requests for comment until the new rule is released, and declined to comment on criticisms of the draft.

Anne Harding
[email protected]

Union protests base’s ban on use of cell phones while driving
January 17, 2006
A cell-phone ban at the warplane boneyard on Davis-Monthan Air Force Base, Ariz., is causing static.
The American Federation of Government Employees Local 2924 at Davis-Monthan’s Aerospace Maintenance and Regeneration Center has requested an arbiter to rule on the policy.
Workplace procedures prohibit employees from driving while talking or using phones near work bays or flammable materials like jet fuel. The government is worried also that camera phones might inadvertently capture classified images.
Similar rules are being enforced at other bases as part of a Department of Defense crackdown on cell phones. The Davis-Monthan employees say the extra restrictions aren't necessary for safety's sake. They also say management can't effectively change employee working conditions without bargaining.

Mexican drug run thwarted at border
By Jerry Seper
Published January 25, 2006
U.S. law-enforcement authorities confronted several men in Mexican military uniforms and a camouflaged Humvee with .50-caliber machine guns who had crossed into Texas with suspected drug smugglers 50 miles southeast of El Paso, forcing an armed standoff along the Rio Grande, says a Texas sheriff.
Hudspeth County, Texas, Sheriff Arvin West said the incident began at 2:19 p.m. Monday when his deputies -- working as part of an anti-drug smuggling enforcement initiative known as "Operation Linebacker" -- pursued three SUVs spotted driving north from a border area along the Rio Grande near Interstate 10.
Sheriff West said the pursuit, which began near Sierra Blanca, Texas, ended for one of the vehicles when it blew out a tire and the driver fled. He said deputies seized 1,400 pounds of marijuana from that vehicle.
As the southbound chase continued for the other two SUVs, he said the deputies and at least two Texas Department of Public Safety troopers who had joined in the pursuit encountered several men on the U.S. side of the border dressed in what he described as battle dress uniforms (BDUs). He said they "appeared to be soldiers, in a Humvee vehicle with what appeared to the officers as being .50-caliber machine guns."
Sheriff West said one of the vehicles made it into Mexico, but the other got stuck in the river, where a group of men in civilian clothes offloaded what appeared to be bundles of marijuana. He said the truck was then set ablaze by the "soldiers."
No shots were fired and no injuries were reported during what amounted to an armed standoff at the border.
T.J. Bonner, a veteran Border Patrol agent and president of the National Border Patrol Council, yesterday called the incident "just another example of what we have been saying all along: This is a serious problem and it's not going to go away.
"The U.S. government has got to put its foot down and take decisive action," said Mr. Bonner, whose union represents all 10,000 of the agency's non-supervisory personnel. "It would be nice if the Mexican government would address the problem, but it won't even admit there is one."
In November, the U.S. Border Patrol chased a dump truck full of marijuana in the same area when it also got stuck in the river seeking to return to Mexico. While Border Patrol agents sought to unload 3 tons of marijuana, the driver -- who had fled -- returned with a heavily armed group of men wearing Mexican military uniforms and carrying military-style weapons. The soldiers backed the agents away and bulldozed the truck back into Mexico.
Last week, Homeland Security Secretary Michael Chertoff dismissed reports of possible Mexican military incursions into the United States as "overblown" and "scare tactics." He said those involved in the crossings may have been dressed in military uniforms, "but they are just criminals, they are not military but they are wearing camouflage so someone may assume they are military."
Mr. Chertoff also said a significant number of 216 confirmed incursions since 1996 were "innocent," noting that police and military units in Mexico pursuing criminals "may step across the border because they do not know exactly where the line is."
Law-enforcement officials yesterday noted that the Texas-Mexico border is clearly marked by the Rio Grande.
Yesterday, U.S. Customs and Border Protection (CBP) spokeswoman Kristi M. Clemens said the Border Patrol was notified of possible narcotics smuggling by the sheriff's office involving suspects dressed in military-style uniforms and using military-style equipment. She said the incident is under investigation.
Ms. Clemens also said the Bush administration is discussing the matter with the government of Mexico and is asking for a thorough investigation and response.
Rafael Laveaga, spokesman for the Mexican Embassy in Washington, yesterday said that country's Ministry of Defense has ordered an investigation of the incident, but "already has informed us they do not have the type of vehicles and heavy weapons described by the sheriff" in the area.
"We strongly deny that members of the Mexican military were involved," Mr. Laveaga said, adding that criminal organizations involved in drug trafficking "wear look-alike military uniforms and use look-alike military equipment to affect an image of the Mexican military."
Republican Reps. David Dreier, chairman of the House Rules Committee, and Duncan Hunter, chairman of the House Armed Services Committee, have asked the House Judiciary Committee, the Department of Homeland Security, the House Homeland Security Committee and the House International Relations Committee to investigate suspected incursions by the Mexican military.
The two California congressmen, citing what they called the "critical importance of border and national security," also asked Mr. Chertoff to explain how these incidents occurred, to outline the department's current policies to address illegal crossings, and to explain its strategy for preventing similar acts in the future.
Sen. Jon Kyl, Arizona Republican and chairman of the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security, also has asked Secretary of State Condoleezza Rice to "initiate an official investigation" and "open a dialogue with Mexico to prevent any future incursions.
"These incidents pose a significant threat to our national security, as I'm sure you agree," Mr. Kyl said.
A Mexican government commission yesterday said it will distribute at least 70,000 maps showing highways, rescue beacons and water tanks in the Arizona desert to curb the death toll among illegal border crossers.

Border timidity
By Tony Blankley

Wednesday, January 25, 2006
It's not that I expect an orderly, predictable world. I have read enough of history to understand that the dynamics of the human personality in a world of constant change will yield radical, often chaotic upheavals.
But still and all, a chap doesn't expect to find a full-grown rhinoceros in his desk drawer or a man-eating sparrow on his window ledge.
So you can imagine my astonishment when I picked up The Washington Times last week and read the Jerry Seper story with the front-page headline: "Mexican military incursions reported: U.S. Border Patrol alerts Arizona agents."
Even in a world gone mad we should not expect to see a headline that Mexico is invading (or even incursioning into) the United States -- unless it is in the entertainment section regarding a remake of "The Mouse That Roared."
As the editorial page editor of The Times, I am very familiar with Mr. Seper. He is no novice to Mexican-American border issues. He undoubtedly is the nation's leading reporter on the subject. I am a longtime reader of Seper's extraordinary border reporting, and experience has taught me to reliably assume that when U.S. government officials deny or contradict Seper's reporting -- believe Seper.
Seper reports: "The U.S. Border Patrol has warned agents in Arizona of incursions into the U.S. by (heavily armed) Mexican (military units) 'trained to escape, evade and counterambush' if detected."
The Border Patrol also cautioned its agents to keep "a low profile," to use "cover and concealment" in approaching the Mexican military units, and "to employ 'shadows and camouflage' to conceal themselves and 'stay as quiet as possible.'"
As a red-blooded naturalized U.S. citizen (OK, perhaps slightly bluish-red), I felt my questionably hued blood boiling at the report that our border patrol has been instructed to hide and stay as quiet as possible in the face of a foreign military incursion. It's not that I expected five U.S. Border Patrol agents to take on a heavily armed Mexican military unit, a la John Wayne. (Well, actually, the thought crossed my mind.)
But I certainly expected the next line of the report to be that the Pentagon had been alerted and 10,000 Marines from nearby Camp Pendleton had been dispatched to drive the Mexican units back across the Rio Grande -- and then some. If Jimmy Polk was still president, the Marines would already be well on their way to Veracruz.
Instead of calling in the Marines (or any other American military fighting organization), U.S. Border Patrol spokesman Salvador Zamora confirmed the story but said the agents were given guidance on "how to react to any sightings of military and foreign police in this country and how to properly document any incursion." He then went on to excuse the incursions as taking place in areas of the border "not marked by monuments or signs."
The spokesman for the Mexican Embassy in Washington did Mr. Zamora one better. Mr. Rafael Laveaga denied the incursions and asserted that Mexican military units have strict rules to stay at least a mile from the border. He then condescendingly suggested that some Mexican drug smugglers "wear uniforms and drive military-type vehicles" and might have been "confused" by U.S. authorities as Mexican military units.
I would suggest that Mr. Laveaga might have been confused.
Indeed, Seper went on to report the views of Mr. T.J. Bonner, 27-year veteran Border Patrol agent, and head of the 10,000-person National Border Patrol Council, that: "Intrusions by the Mexican military to protect drug loads happen all the time and represent a significant threat to the agents." He went on to say the incursions were not accidents, as the Mexican military has global positioning systems.
Since 1996, 216 incursions have been documented, according to the Department of Homeland Security. But a Pentagon spokesman said she had no information on the reported incursion.
"What goes on at the border, stays at the border" would seem to be our government's guiding principle. The facts would suggest that it is the policy of the Bush administration to ignore these military raiding parties so long as they are not driving on toward Sacramento, Chicago or Washington, D.C. (They ignore the fact that an infection may intrude through a crack in the skin and then proceed inward to the vital organs.)
The powers that be remain close-minded to the ever-growing dangers and national insults that flow from open borders.
It is said that pride goeth before the fall. But it is equally true that a nation that has so little pride in its own territorial integrity is also due for a sharp trip downward.

Join AFGE Today


Shutdown Lawsuit

Diversity Week

I Serve Veterans

Behind the Scenes

AFGE Events

Event Calendar is for Members Only. Please Log In to see our calendar of events.


SUBSCRIBE Latest news & info