American Fed. of Gov. Empl., Afl-Cio v. Rumsfeld

Decision Date27 February 2006
Docket NumberNo. CIV. 05-2183 EGS.,CIV. 05-2183 EGS.
PartiesAMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Plaintiffs, v. Donald H. RUMSFELD, Secretary, United States Department of Defense, et al., Defendants.
CourtU.S. District Court — District of Columbia

Joseph Goldberg, American Federation of Government Employees, Daniel McCrea Schember, Gaffney & Schember, PC, Sally Momsen Tedrow, O'Donoghue & O'Donoghue LLP, Susan Tsui Grundmann, National Federation of Federal Employees, Washington, DC, for Plaintiffs.

Jeffrey Michael Smith, Joseph W. Lobue, Jonathan Eli Zimmerman, U.S. Department of Justice,, Washington, DC, for Defendants.


SULLIVAN, District Judge.

Plaintiffs, thirteen labor organizations that represent more than 350,000 employees of the Department of Defense ("DoD"), filed this lawsuit challenging final regulations implemented by defendants, the DoD and the Office of Personnel Management ("OPM"). The challenged regulations were promulgated in response to the National Defense Authorization Act for Fiscal Year 2004 ("NDAA"), which authorized defendants to develop a new human resources management system known as the National Security Personnel System ("NSPS"). 5 U.S.C. § 9902.

Plaintiffs raise five challenges to the regulations under Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, plaintiffs argue that defendants did not comply with the statutory mandate that defendants act "in collaboration with, and in a manner that ensures the participation of, employee representatives in the development and implementation of [a] labor management relations system." 5 U.S.C. § 9902(m)(3).

Second, plaintiffs claim that the regulations establish a labor relations system that unlawfully departs from 5 U.S.C. §§ 7101 et. seq. ("chapter 71"), which governed labor-management relations at DoD prior to the passage of the NDAA. Plaintiffs contend that the statute permits only two narrow deviations from chapter 71:(1) the Secretary may bargain at a level above the level of exclusive recognition (commonly called "national level bargaining"); and (2) if the Secretary establishes a new labor relations system, the system must provide for "independent third party review" of labor relations decisions. 5 U.S.C. § 9902(m)(5) and (m)(6). Plaintiffs maintain that because only these two provisions directly conflict with chapter 71, they are the only circumstances in which the Secretary may depart from chapter 71.

Third, plaintiffs maintain that the labor relations system established by the new rule violates Congress' requirement that the NSPS "ensure that employees may organize, bargain collectively as provided for in this chapter ...." 5 U.S.C. § 9902(b)(4).

Fourth, plaintiffs argue that the National Security Labor Relations Board ("NSLRB") established by the new rule does not satisfy Congress' requirement that the new labor relations system provide for an "independent third party" to review labor relations decisions. 5 U.S.C. § 9902(m)(6).

Finally, plaintiffs maintain that, contrary to the statute, the regulations establishing an appeals process for disciplined employees fails to provide for "fair treatment" and "due process" as required by 5 U.S.C. § 9902(h)(1)(A) and (B)(i).

Pending before the Court are plaintiffs' Motion for Summary Judgment and defendants' Motion to Dismiss for lack of jurisdiction and failure to state a claim.1 A hearing on the motions was held on January 24, 2006. Upon careful consideration of the parties' cross motions, the response and reply thereto, oral arguments, supplemental briefing filed by the parties,2 the governing statutory and case law, and the entire record, the Court concludes: (1) defendants satisfied their statutory obligation to collaborate with plaintiffs; (2) defendants lawfully departed from chapter 71 in establishing a labor relations system; (3) the new rule fails to ensure that employees can bargain collectively; (4) the NSLRB does not meet Congress' requirement for "independent third party review" of labor relations decisions; and (5) the process for appealing adverse actions fails to provide employees with "fair treatment" as required by statute.

Accordingly, plaintiffs' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART and defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART.


Plaintiffs are thirteen labor organizations that represent, collectively, more than 350,000 employees in the DoD (the "Unions"). Defendants are Donald H. Rumsfeld, the Secretary of the DoD and Linda M. Springer, Director of the OPM (the "Agencies"). Ms. Springer succeeded Kay Coles James, who was the OPM Director when the proposed regulations in this case were promulgated.

In the federal sector, bargaining takes place regarding the impact and implementation of an agency's management rights, negotiated procedures, and arrangements for adversely affected employees. Plaintiffs engage in impact and implementation, negotiated procedure, and appropriate arrangement negotiations. The American Federation of Government Employees, AFL-CIO ("AFGE"), for example, has negotiated agreements on the procedures DoD uses when determining which employees will work overtime; the procedures DoD will use when making staffing decisions, such as determining which employees will be transferred to new posts of duty or assigning work shifts; the procedures conducting a reduction-in-force ("RIF") such as buyouts, early retirement, placement in other positions within DoD, or placement in positions in other agencies; and appropriate arrangements for employees who are exposed to safety or health hazards on the job. These areas are also governed, in part, by government-wide procedures. Before Congress passed the NDAA, labor-management relations at DoD were governed by chapter 71 of Title 5 ("chapter 71"). 5 U.S.C. §§ 7101 et seq.

The parties do not dispute that the issues of overtime, the changing of work schedules over an employee's objections, and safety and health concerns are important to DoD employees. Some or all of the plaintiffs have negotiated agreements addressing overtime, procedures for determining whose work schedules should be changed and how, and arrangements on behalf of employees who perform hazardous or dangerous work, including work-place safety practices, personal protective equipment, training, and improved ventilation. Plaintiffs have also been permitted to be present at any examination of a bargaining unit employee by an agency representative in connection with an investigation, if the employee reasonably believes the examination may result in disciplinary action against the employee and the employee requests representation. Plaintiffs have also represented DoD employees at formal discussions between management and bargaining unit employees. Some of the Unions, such as AFGE and National Association of Government Employees ("NAGE"), have represented certain employees of Non—Appropriated Fund Instrumentalities ("NAFIs") within the DoD and negotiated contracts on their behalf.

A. The National Defense Authorization Act for Fiscal Year 2004

As part of the NDAA, Congress authorized the DoD and OPM to establish a human resources management system for organizational units of DoD. 5 U.S.C. § 9902(a) ("Notwithstanding any other provision of this part, the Secretary may, in regulations prescribed jointly with the Director, establish, and from time to time adjust, a human resources management system for some or all of the organizational or functional units of the Department of Defense."). The system, embodied in final regulations published at 70 Fed.Reg. 66116-66220 (Nov. 1, 2005), is known as the National Security Personnel System ("NSPS"). The statute also authorizes defendants to establish and adjust a labor relations system for the Department of Defense. 5 U.S.C. § 9902(m)(1). The parties do not dispute that the labor system authorized by § 9902(m) is a part of the human resources management system authorized by § 9902(a). Motions Hr'g Tr. 9, 63, Jan. 24, 2006 ("Tr. 1/24/06").

1. Requirements of the Human Resources Management System

Section 9902(b) details six system requirements. Among other requirements, the human resources management system must:

(1) be flexible; (2) be contemporary; ... (4) ensure that employees may organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions which affect them, subject to the provisions of this chapter and any exclusion from coverage or limitation on negotiability pursuant to law; ... and (6) include a performance management system that incorporates . . . [a] pay for performance evaluation system to better link individual pay to performance, and provide an equitable method for appraising and compensating employees.

5 U.S.C. § 9902(b)(1), (2), (4), and (6).

Section 9902(b)(3) states that the human resources management system "shall not waive, modify, or otherwise affect" a list of provisions. The list includes provisions that establish "merit systems principles," (5 U.S.C. § 2301) and "prohibited personnel practices" (5 U.S.C. § 2302). See 5 U.S.C. §§ 9902(b)(3)(A)-(C). Section 9902(b)(3) further provides that the system shall not waive, modify, or otherwise affect "any other provision of this part (as described in subsection (d))." 5 U.S.C. § 9902(b)(3)(D). Subsection (d), entitled "Other nonwaivable provisions," lists five specified subparts and 11 chapters within Title 5 that are nonwaivable "to the extent not otherwise specified in this title." 5 U.S.C. § 9902(b)(3)(D) and (d). The provisions listed in § 9902(d)(2) include chapter 71.

2. The Labor Relations System

A key provision in this...

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  • American Federation of Government v. Gates
    • United States
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    ...requirement that the National Security Personnel System ensure employees can bargain collectively. See Am. Fed'n of Gov't Employees v. Rumsfeld, 422 F.Supp.2d 16, 40-45 (2006). The District Court found that subsection (b)(4) means "the new system must ensure that the principles of collectiv......

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