DoD Unions Face Setback in the U.S. Court of Appeals

(National Federation of Federal Employees)

In a bitterly divided 2-1 opinion, the U.S. Court of Appeals for the District of Columbia Circuit, reversed the U.S. District Court, which enjoined DoD from implementing regulations on labor relations, adverse actions, and employee appeals.  The Court determined that the National Defense Authorization Act of 2004 (NDAA) gave the Secretary of Defense, in conjunction with the Director of the Office of Personnel Management, the authority to “curtail collective bargaining” until the law sunsets in November 2009.

The Court noted that while the NDAA ensures collective bargaining as a system requirement, statutory phrases such as “as provided in this chapter” and “subject to the provisions of this chapter” allowed the Secretary essentially to ignore the mandate. The majority thus found that DoD has this “temporary, experimental period” to set up a labor relations system essentially unfettered by collective bargaining requirements. Dissenting Judge Tatel agreed with the NFFE and the unions that the parenthetical phrases referred to specific departures from Chapter 71 collective bargaining requirements, such as national level bargaining. Like the panel of judges from the same court who decided the appeal in NTEU, AFGE, NFFE, et al v. Chertoff, et al, over the Department of Homeland Security regulations, the dissenting judge found that “collective bargaining” is a well-defined term of art that could not be redefined and placed in a vacuum devoid of any meaning.

The majority also found that the law explicitly allows the Secretary to issue implementing issuances that abrogate collective bargaining agreements at any time. The Court distinguished Chertoff by stating, “(o)ur decision in Chertoff does not provide any meaningful guidance for our interpretation of the very different DoD statute.”   Similarly, the Court found that the law gave the Secretary the right to remove the ability of non-appropriated fund employees to negotiate over pay.   The Court also rejected our arguments that the National Security Labor Relations Board was not an independent third-party as required under the law, however, it never addressed whether the internal labor board constituted a third party. Finally, the Court dismissed arguments that conduct expectations imposed on employee representatives, such as union officials, would chill vigorous advocacy.

In the context of employee appeals, the Court found that the DoD appeals process guaranteed fair treatment of employees, even though the regulations authorized DoD to unilaterally alter findings of fact and conclusions of law by the fact finder. In each instance, the Court found that the DoD’s interpretation of terms was reasonable.

It is apparent that the majority justified its decision by rendering the systems requirement of collective bargaining absolutely meaningless. As the dissent reasoned, the NDAA, when read as a logical whole, can be harmonized with the Chertoff decision, which upholds the principles of collective bargaining and fair treatment of employee appeals.

NFFE and the other United DoD Workers Coalition unions remain committed to the fight against NSPS. In a press conference yesterday, we announced our intent to seek rehearing en banc (or full court) of the decision. With a conflict between the Chertoff decision last year and this latest decision, that flies in the face of reasoned analysis, we are optimistic that the full D.C. Circuit will accept our petition.

Link to the Appeals Court decision: http://www.nffe.org/ht/a/GetDocumentAction/i/4278