- The Washington Times - Monday, September 9, 2002

What's the main thing preventing Congress from creating President Bush's proposed Department of Homeland Security? According to Sen. Joseph Lieberman, it's an "unnecessary roadblock" from the president his insistence that the new secretary be given broad, unprecedented "flexibility" to manage the department.
Almost lost amid the debate is the fact that the House and Senate are using the homeland security bill as a vehicle for weakening a power the executive branch has enjoyed since 1978: the authority to exempt certain agencies from union control if the president decides it would interfere with their "primary function of intelligence, counterintelligence, investigative or national security work" (Title 5 of the U.S. Code).
And why would union control interfere with their work? Because it breeds time-consuming litigation and subjects the government to document disclosures that can hinder the ability of some agencies to accomplish their mission. In many cases, federal officials are forced to grapple with cases ranging from the trivial to the mundane, while larger, more important issues go unresolved.
Such cases are weighed by the Federal Service Impasses Panel and the Federal Labor Relations Authority. Together, they have had to judge, for example, whether a radio could be used at a Department of Housing and Urban Development work site and if jeans and sneakers could be worn on Fridays at the Office of the U.S. Attorney.
They've been asked to decide on the appropriate sleeve length for U.S. Customs inspectors, to rule on paint and rug colors for a Social Security field office, and to figure out whether management should provide free bottled water at the New York District office of the Small Business Administration. While these cases are busy consuming time and money, more substantive issues are delayed such as homeland security.
Consider what happened when the Immigration and Naturalization Service offered in 1997 to negotiate over the policy for searching apprehended illegal aliens. The critical questions to be addressed were when INS officers could conduct more than a "pat down" search and what other steps they could take if they suspected an illegal alien might be armed and dangerous.
After numerous sessions without agreement, the INS told the union that it was simply going to implement its best and final offer. The union appealed, and the Federal Labor Relations Authority ordered the INS to rescind the policy. Five years later, there is still no INS policy governing how to conduct these searches.
Surely, the department charged with homeland security can't afford such paralysis of policy and personnel. Yet Mr. Lieberman is specifically requesting that employees of the new department be allowed to have labor-related cases "reviewed by the Federal Labor Relations Authority."
No wonder the president wants to retain this prerogative.
Does this mean workers would lack job protections altogether? Certainly not. The presidential power at stake here is limited to union representation. If the president prevails, everyone who works in the Homeland Security Department will have ample job protections that no one can take away. The panoply of prevailing employee rights, benefits and protections is so generous that it fills more than 800 pages of the U.S. Code.
Indeed, the code specifically prohibits arbitrary actions, favoritism, coercive behavior and reprisals and enumerates a host of specific "prohibited personnel practices." The Merit System Protection Board handles personnel grievances and disputes, and the Equal Employment Opportunity Commission rules on discrimination complaints. Nothing would strip federal workers of these safeguards.
If these remaining protections are insufficient, it's news to the tens of thousands of federal employees who have long been exempt from union control. They're toiling away at the FBI, the CIA, the National Security Agency, the Secret Service, the Air Marshals office at the Federal Aviation Administration, the Criminal Investigation Division at the IRS, the Office of Criminal Enforcement at the Bureau of Alcohol, Tobacco and Firearms and the offices of Enforcement and Intelligence at the Drug Enforcement Agency.
These employees demonstrate every day that it is possible to thrive within "just" the remaining protections and guarantees sought by the White House. Otherwise, why did Congress, when it created the Transportation Security Administration last year, leave it up to the White House to decide whether its 41,300 employees would fall under union control?
At a time when policy-makers have reached the consensus that the many agencies sharing jurisdiction on homeland security must be united under one chain of command, it makes no sense to reduce the president's authority. The desire to protect a narrow special interest seems ill-timed against a backdrop of terrorist alerts on the home front and significant personal sacrifices from the families and the troops deployed in the continuing war on terrorism.

George Nesterczuk is head of Nesterczuk and Associates, a management consulting firm in Vienna, Va., He previously worked at the U.S. Office of Personnel Management and was staff director of the House subcommittee on the civil service.

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