Did TSA Head Break Neutrality Obligation by Permitting Prospective Bargaining?

By on February 7, 2011 in Current Events with 26 Comments

In a Memo to all employees, Transportation Safety Administrator John Pistole authorized collective bargaining rights for screening personnel at the Agency. In part, his memo states:

“Based on this review and after much consideration, I have issued a Determination today, using my authority under the law that created TSA, to enable our TSO workforce to vote on whether or not they want to engage in collective bargaining under a unique framework that includes bargaining on limited, non-security issues relating to employment. This Determination sets forth a fair labor relations system unique to TSA that will protect TSA’s capability and flexibility to respond to evolving threats, maximize the utilization of TSA resources, and improve performance, employee engagement and professional development.”

Changing the Rules in the Middle of the Game?

Mr. Pistole clearly says that he wants the workforce to decide whether they want collective bargaining under a framework of the Agency’s devising. Well, not really Mr. Pistole, the Federal Labor Relations Authority decided the employees could elect whether to have a union without collective bargaining rights at all.  FLRA, in its decision ordering an election said:

“For the foregoing reasons, we find that the decision in TSA warrants reconsideration, and, on reconsideration, we overrule TSA and reverse the RD’s decision.
In so finding, we acknowledge NTEU’s and the Agency’s argument that, in directing an election, we should explain what exclusive representation means absent the right to engage in collective bargaining. To the extent that this argument suggests that we should articulate all of the details regarding how the Agency would be required to deal with AFGE or NTEU should either of those labor organizations be certified, it is neither necessary nor prudent to do so here. In this regard, although issues have been raised and questions posed, the record does not include the parties’ arguments on these matters.  Moreover, although the parties’ positions on these issues and questions could be obtained, doing so at this point would delay the election, and such delay is contrary to the purposes of the Statute. In this connection, the Authority has held that there is a “public interest[]” in “allowing employees to vote for the representative of their choice, without undue delay or the possible influence of extraneous factors caused by the passage of time[.]” (65 FLRA No. 53)(My Emphasis)

So this election was authorized in light of TSA’s asserted position that, at that time, employees had no collective bargaining rights and that the employees were voting under that assumption.

What Happened to Management Neutrality?

In an early and often cited case involving the Air Force, the  National Federation of Federal Employees, the American Federation of Government Employees (5 FLRA No. 62 , April 17, 1981), FLRA found

“Consistent with the stated intent of Congress, the Authority concludes that management’s breach of neutrality during an election campaign similarly interferes with the same protected rights of employees under the Statute and therefore violates section 7116(a)(1) of the Statute.

In the instant case, as found above with respect to Case No. 6-RO-7, the Activity breached its obligation to remain neutral during the election campaign by posting on all bulletin boards and distributing to unit employees — shortly before the scheduled election — a message signed by the head of the Activity which strongly implied that unions were unnecessary, undesirable, and difficult to remove once the employees voted in favor of exclusive recognition. Such violation of neutrality interfered with the employees’ protected right under section 7102 of the Statute to “form, join, or assist any labor organization, or to refrain from any such activity,” and therefore violated section 7116(a)(1) of the Statute in the circumstances of this case.” (My emphasis)

Of course, in the above case, the Agency involved acted in an anti-union way. In the TSA situation, is there a difference in that the Agency acted in a union-friendly way. After all, neutrality is neutrality, isn’t it? Maybe not.

We have a clearly union friendly FLRA and administration. It’s OK for the administration to be union friendly as a matter of principle since the unions are substantial contributors as well as constituents of the administration.   The FLRA, on the other hand, has a statutory obligation to remain neutral which even a casual observer would say it has failed to observe. But by its own case law, FLRA has enforced Agency neutrality in petition and election processes.

So What’s the Problem?

In every recognition election, such as the one currently involving TSA, the choice of “No Union” must appear on the ballot. By announcing this new policy and letting employees know that they would have increased rights by voting in a union, has TSA interfered with the election and committed a violation of the law? 

It is pretty easy to see that when management is unfriendly to a union and broadcasts that position, the FLRA would certainly find a violation. But when the Agency goes out of its way to assure that a union will win, isn’t that the same thing? You decide.

So Who Would File an Unfair Labor Practice in this Matter?

FLRA’s  own “UNFAIR LABOR PRACTICE CASE HANDLING MANUAL – 2010” says:

“1. WHO MAY FILE A CHARGE:

Section 2423.3 states:

“Any person may charge an activity, agency or labor organization with having engaged in, or

engaging in, any unfair labor practice prohibited under 5 U.S.C. 7116.” 

“Person” is defined as “an individual, labor organization, or agency” Section 2421.2

(incorporating the definition at § 7103(a)(1) of the Statute)”

The sections they’re talking about refer to the FLRA’s regulations contained in the Code of Federal Regulations.

So, who can file? You can. Since any reader is likely to also be a “person”, any such reader can go to FLRA’s website, read up on how to file and submit the right forms. Don’t worry, there’s plenty of time. Unfair Labor Practices have a six month filing window.

So I guess anyone who thinks TSA has violated the Federal labor statute by breaching its neutrality during a pending valid QCR (question concerning representation), might want to file such a charge. You decide.

Any opinion expressed above is mine and mine alone and isn’t intended to represent anyone else.

Editor’s Note: Sen. Roger Wicker (R-MS) has indicated the Senate would take
up his legislation to deny TSA workers collective bargaining rights., which he says is an Obama administration effort to reward Democratic supporters.

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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