Thousands of educators work as civilian employees for the Department of Defense (DOD). As teachers dedicated to educating the children of the United States Military, they have always enjoyed the civil service protections afforded federal workers. However, many civilian educators now fear that these rights may be eroded by the government's implementation of a new workforce management program. In November 2003 Congress passed Public Law 108-136, an otherwise ordinary bill to authorize appropriations for the Department of Defense (DOD) for fiscal year 2004. Embedded in the legislation was language which, in the interest of homeland security, would allow the DOD to waive existing laws that govern the management of civilian educators. Under the law, the DOD may implement regulations which ignore existing laws governing labor relations, discipline, pay, and performance standards where educators are concerned.
In essence, the law gives the DOD the authority to take control of these issues under the umbrella of the "National security Personnel System" (NSPS). The proposal of these regulations immediately caught the attention of unions representing civilian educators, and they took action. For example, both the Federal Education Association and National Education Association have vigorously lobbied Congress to halt implementation of the NSPS. The American Federation of Government Employees (AFGE) successfully filed suit in federal district court to block the implementation of portions of the NSPS, but that suit is being appealed by the DOD.1 Despite the favorable district court ruling, the DOD has announced its intentions to continue without delay its full implementation of the NSPS by January 2007.2 The following is a discussion of the proposed rule and how that rule will affect the existing laws that govern bargaining between unions and the federal government.
II. THE LEGISLATION AND THE PROPOSED RULE
Public Law 108-136, Title XI, § 1101 gives the Department of Defense the authority to create the National Security Personnel System through regulations to be issued by DOD which will become part of the United States Code.3 Under Subpart I of DOD's proposed regulations entitled "Labor-Management Relations," DOD's stated purpose is to enable "a swift response to ever-changing security threats."4 DOD goes on to say in § 7 of Subpart I that it may make decisions based upon immediate needs, and "whatever other actions may be necessary to carry out the Department's mission. The DOD can take action in any of these areas without advance notice to the union."5
This provision, which also includes civilian educators employed by DOD, would allow the agency to simply bypass its responsibility to bargain with their employees' unions whenever it sees fit. The next section provides an analysis of case law that has set the precedent for interpreting ambiguous statutory language, and how it applies to the government's rulemaking authority.
III. THE FRAMEWORK FOR TEACHERS' COLLECTIVE BARGAINING RIGHTS
Civilian educators employed by Federal agencies currently have the right to collectively bargain with the government through their chosen union representatives. They also have the right to challenge a Federal agency in court if that agency uses the rulemaking process to infringe upon those collective bargaining rights. As described below, the underpinnings of these rights are formed by a number of court cases which clarify agency rulemaking in general, and the union bargaining responsibilities of departments like the DOD, in particular.
First, the courts established a standard for reviewing an agency's interpretations of statutes; this standard sets the stage for the DOD's civilian educators' court challenge of the NSPS. Second, the courts firmly established the right of employees to collectively bargain with the government. Third, the courts have explicitly and directly acknowledged the particular rights of teachers' unions to negotiate with the military on behalf of teachers. …