NSPS—Brief History and Background
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February 2005—Draft Regulations Issued
April 2005—Unions/DoD Begin “Meet and Confer Process
November 2005—DoD Publishes Final Regulations/Unions File Suit
February 2006—Judge Issues Decision in Union Suit
April 2006—DoD Appeals Judge’s Decision
May 2007—Appeals Court Reverses District Court Decision
July 2007—Unions File Petition for Rehearing
August 2007—Appeals Court Denies Request for Rehearing
In 2003, under the guise of national security, Congress granted the Department of Defense (DoD) the authority to establish a new human resources system and to modify certain labor relations provisions under what was called the National Security Personnel System (NSPS).
February 2005—Draft Regulations Issued
When then-Defense Secretary Rumsfeld appeared before Congress, he stressed the need for flexibilities in order to defend our nation against the new threats of terrorism. Yet, when draft regulations were finally issued on February 14, 2005, the agency put forward a plan that scarcely resembled the one brought to Congress.
The law required DoD officials to engage in meaningful discussions with the unions concerning the development of NSPS. Moreover, Congress mandated that NSPS be created jointly with employee representatives through a “meet and confer” process before any changes to existing personnel and labor relations policies could be implemented. In light of this, shortly after the law was created, 36 labor organizations came together to form a coalition called the United Department of Defense Workers Coalition (UDWC). The UDWC went to work not only to defend federal employee rights but to work with DoD to find real solutions to real problems.
April 2005—Unions/DoD Begin “Meet and Confer" Process
In April of 2005, the UDWC sat down with DoD to begin the meet and confer process. The unions representing the federal civilian workforce made a good-faith effort to address the needs of DoD and revise the current personnel system. Rather than trying to collaborate with the UDWC, the agency chose to ignore virtually all of the proposals offered by the unions. DoD insisted that the authority granted to them by Congress allowed them to use national security as a pretense to do whatever the agency wanted. This approach was encouraged by the Office of Personnel Management (OPM). Then-OPM Director Kay Cole James stated in a letter to Secretary Rumsfeld that we “…strongly support the objective of assuring DoD’s discretion to act without being burdened by collective bargaining obligations…”
November 2005—DoD Publishes Final Regulations/Unions File Suit
DoD published its final regulations on November 1, 2005. Remarkably, despite nearly 58,000 comments from the public and federal workers and a 30-day meet and confer period, DoD deviated only slightly from the originally proposed regulations. The end product was a set of regulations that lacked in specificity and thus resulted in an unbalanced set of employment directives that were neither objective nor fair for federal employees.
On November 7, 2005, 10 member unions of the UDWC filed suit against the DoD in the United States District Court for the District of Columbia, challenging the new NSPS regulations as exceeding congressional intent and being contrary to law (AFGE, et al. v. Rumsfeld).
February 2006—Judge Issues Decision in Union Suit
On February 27, 2006, Judge Emmett G. Sullivan issued a decision on the case. He determined that several key components of NSPS, including those concerning collective bargaining and third-party review of labor-management disputes, were “legally deficient.” Sullivan’s ruling was consistent with an earlier ruling by Judge Rosemary Collyer in a similar lawsuit that challenged the personnel changes attempted by the Department of Homeland Security (DHS). The DHS decision was later unanimously affirmed by a court of appeals decision.
April 2006—DoD Appeals Judge’s Decision
On April 18, 2006, DoD appealed Judge Sullivan’s decision. The case was argued in December of 2006.
May 2007—Appeals Court Reverses District Court Decision
A decision was issued on May 18, 2007. In a bitterly divided 2-1 decision, the U.S. Court of Appeals for the District of Columbia Circuit reversed the U.S. District Court. The Court of Appeals determined that the language in the National Defense Authorization Act of 2004 gave the Secretary of Defense the authority to “curtail collective bargaining” until the law sunsets in November 2009. This “temporary, experimental period” authorized DoD to set up a labor relations system essentially unfettered by any collective bargaining requirements.
July 2007—Unions File Petition for Rehearing
On July 2, 2007, Defense unions filed a Petition for Rehearing En Banc. On August 10, 2007 the U.S. Court of Appeals for the District of Columbia Circuit decided not to rehear the case. It is expected that in the coming weeks, the D.C. Circuit Court will issue their mandate on this case. Once the Court issues the mandate, DoD will then be able to implement NSPS in full for both bargaining unit and non-bargaining unit employees. It should be noted that the American Federation of Government Employees has asked for a stay of the mandate while they pursue an appeal to the Supreme Court. However, it is unlikely that a stay of the mandate will be granted.
August 2007—Appeals Court Denies Request for Rehearing
On Friday, August 10, the United States Court of Appeals for the District of Columbia denied a request from Defense unions to rehear the case regarding the legality of the National Security Personnel System (NSPS). The Appeals court decision overturned an earlier ruling that found major parts of the Pentagon’s new personnel plan inconsistent with law.