The bipartisan Nelson-Chafee-Breaux amendment is a reasonable compromise solution to two of the most glaring failures of the Gramm-Miller substitute amendment.
• The Gramm-Miller substitute would allow the union rights of thousands of future employees of the Department of Homeland Security to be arbitrarily stripped away, even if they and their agency are doing exactly the same work in the new Department that they are doing today.
• This will damage, not advance, national security, by weakening the workforce responsible for protecting us against terrorism, in the midst of this urgent and complex merger. Unionized workers are dedicated public servants whose hard work keeps the nation safe. Congress ought to be working with them to make the merger work, not working against them.
• The compromise amendment fixes this flaw, while ensuring that the President and Secretary retain all the authority they need to manage an effective and responsive Department. Under the amendment:
The President can use his existing authority to remove collective bargaining rights of currently unionized employees en masse, for entire agencies or subdivisions of the new Department on national security grounds. He simply has to determine that the mission and responsibilities of the agency or subdivision have changed, and that a majority of the employees in that agency or subdivision have intelligence, counterintelligence, or investigative work directly related to terrorism as their main job duty. This ensures that workers currently represented by unions whose jobs remain the same don’t suddenly and arbitrarily lose their union rights upon entering the Department of Homeland Security.
The Secretary of Homeland Security can remove the collective bargaining rights of individual employees, using similar standards.
• On Civil Service, the Gramm-Miller substitute would gut many key provisions of civil service law that protect the new Department from favoritism, politicization, patronage, and other pernicious influences.
• Shredding the public accountability of the civil service law would jeopardize the performance of the new Department. The Breaux-Nelson-Chafee amendment therefore retains two key safeguards of civil service law. Under the amendment:
Employees of the Department of Homeland Security will retain their right to due process before the Merit Systems Protection Board when certain rights are violated:
Whistleblowers are retaliated against. Without the right to a hearing outside their agency, the courageous Colleen Rowleys of the new Department are more likely to become pariahs rather than heroes, and the public is likely to pay the price;
Employees are subject to other kinds of prohibited personnel practices, such as political favoritism, nepotism, or other arbitrary action. The civil service law is designed to prevent government agencies from being packed with patronage jobs, and the MSPB gives this protection real meaning;
Laws protecting veterans’ preference in employment are violated;
Employees are fired or demoted unlawfully.
The Nelson-Chafee-Breaux amendment prohibits the Administration from unilaterally rewriting the statute governing collective bargaining—including the rights and responsibilities of unions and management. Under the Gramm-Miller substitute, the Administration would gain the unilateral right to rewrite these laws.
• This amendment would enable the Department of Homeland Security to design and implement a new personnel management system allowing for new flexibility in the areas of pay, evaluation and assessment of performance, and consequences for poor performance.
• This amendment adopts the precise approach taken in the IRS personnel management reforms that Republicans have touted over the course of this debate.
At the IRS, following a private sector model, personnel flexibilities only go into effect after the agency reaches agreement with the unions.
Labor and management bargain, and if they have difficulty reaching agreement, disputes are taken to the Federal Services Impasses Panel, which resolves the disagreements. This allows the development of a flexible personnel system while also ensuring that employees are on board with the new system.
Prepared by the Governmental Affairs Committee