DoD Wins Appeal in Bid to Halt Collective Bargaining

A 2-1 decision today by a panel of the U.S. Court of Appeals for the District of Columbia Circuit gives the Pentagon a major victory at the expense of the American Federation of Government Employees and the AFL-CIO. The Department of Defense imposed a new personnel system that ended collective bargaining for hundreds of thousands of civilian employees, which was allowed by the National Defense Authorization Act for FY2004. AFGE sued and won in a lower court, but this appeals court reversed (American Federation of Government Employees, AFL-CIO, et al. v. Robert M. Gates, No. 06-5113.

Judge Brett M. Kavanaugh wrote the majority opinion and was joined by Senior Judge Stephen F. Williams. Judge David S. Tatel dissented in part, writing that the majority wrongly interpreted the act's Chapter 99, subsection (b)(4), which said the new personnel system must "ensure that employees may . . . bargain collectively as provided for in this chapter." The majority held that subsection (m) nonetheless allows the defense secretary to abolish collective bargaining. "Because I believe that subsection (m) does no such thing, I respectfully dissent from Parts I and II of the court's opinion," Tatel wrote.

This decision frees DoD -- barring a rehearing or reversal by the U.S. Supreme Court, if AFGE decides to appeal -- not to engage in collective bargaining until Dec. 1, 2009. Beginning on that date, the department must again ensure collective bargaining, according to Kavanaugh's opinion.

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