## Facts

- Congress authorized the Department of Homeland Security (DHS), through joint regulations with the Office of Personnel Management (OPM), to create a DHS-specific human resources management system under the Homeland Security Act of 2002 (HSA), 5 U.S.C. § 9701.
- The HSA required the system to “ensure” employees could organize and bargain collectively, and to provide fair treatment in employment-related appeals, while preserving specified merit-system and employee-protection provisions.
- DHS and OPM issued a final rule establishing the new system in 5 C.F.R. pt. 9701.
- The rule significantly restricted the scope of collective bargaining, permitted DHS to issue department-wide “implementing directives” affecting working conditions, and restructured dispute resolution in ways that limited or displaced the Federal Labor Relations Authority (FLRA).
- Federal employee unions sued, arguing the rule conflicted with the HSA and federal labor law.
- The district court enjoined provisions allowing DHS to override collective bargaining agreements and impairing the FLRA’s role, but upheld parts of the rule narrowing negotiable subjects.
- The government appealed the injunction; the unions cross-appealed the portions left in place.

## Issues

1. Whether the HSA’s requirement to “ensure” collective bargaining permits regulations that allow DHS to unilaterally override or nullify negotiated collective bargaining agreements through implementing directives.
2. Whether the HSA authorizes DHS and OPM to alter, restrict, or displace the statutory functions and jurisdiction of the FLRA in DHS labor disputes.
3. Whether the HSA permits DHS to narrow the scope of negotiable subjects compared to the default framework applicable under 5 U.S.C. ch. 71.

## Decision

- The D.C. Circuit affirmed the invalidation of rule provisions that allowed DHS to unilaterally override collective bargaining agreements, holding this failed to “ensure” collective bargaining as required by the HSA.
- The court affirmed that DHS lacked authority under § 9701 to restructure or curtail the FLRA’s statutory role absent clear congressional authorization.
- The court rejected broader union challenges to the narrowed scope of bargaining, holding the HSA allowed DHS to limit negotiable subjects more than the default federal scheme, so long as collective bargaining remained real and binding on matters left negotiable.
- The court affirmed in part, reversed in part, and remanded for further proceedings consistent with its opinion.

## Legal Principles

- When Congress uses a term of art such as “collective bargaining” in a federal labor context, it carries its established meaning, including negotiation of binding agreements rather than purely advisory discussions.
- An agency may not, through regulation, effectively render collective bargaining illusory by reserving unilateral power to negate negotiated agreements, where the governing statute requires that collective bargaining be “ensure[d].”
- Broad delegations to design an agency-specific personnel system do not implicitly authorize rewriting or displacing statutory functions assigned by Congress to an independent entity such as the FLRA.
- Statutory silence on altering another entity’s authority (here, the FLRA), especially where Congress expressly addressed other consultative relationships (e.g., involving appeals procedures), weighs against inferring authority to restructure that entity.
- The HSA permits some narrowing of negotiable subjects for DHS, but not elimination of the binding character of collective bargaining on the subjects that remain negotiable.

## Conclusion

The D.C. Circuit held that DHS and OPM exceeded their authority by issuing regulations that allowed DHS to nullify collective bargaining agreements and to displace the FLRA’s statutory role, but it also held that the HSA permits DHS to narrow the scope of bargaining so long as collective bargaining remains meaningful and binding within the allowed domain.


Nat’l Treasury Emps. Union v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006)