Is An FLRA Regional Director Going to Violate the Law in TSA Union Recognition Case?

In 2003, the Federal Labor Relations Authority found that the Transportation Security Administrator had the absolute right to decide whether a union could represent TSA employees. The author asks what has changed except politics and whether a regional official can violate a legal precedent on his own. You be the judge.

“If I am elected President, I will work to ensure TSOs have collective bargaining rights…”

– Candidate Barack Obama letter to AFGE President John Gage, October 20, 2008

In a press release dated March 9, 2010, the American Federation of Government Employees (AFGE) announced that it:

applauded the Federal Labor Relations Authority’s prompt handling of its petition for exclusive union representation at the Transportation Security Administration.” 

 It went on to say that:

“In a letter to TSA Assistant Administrator for Human Capital Richard Whitford, FLRA Acting Regional Director Peter Sutton asked Whitford to provide a list of employees described in AFGE’s petition, which are non-supervisory Transportation Security Officers in pay bands D, E, F, and G. Sutton also asked for a list of employees who won’t be part of the bargaining unit, including supervisors and TSA headquarters staff. Sutton further asked for TSA’s position on AFGE’s petition, which seeks to determine whether TSOs wish to be represented by a union for the purpose of collective bargaining” (My Emphasis)

So What’s the Problem?

On November 4, 2003 the FLRA issued 59 FLRA No. 63. A majority of the members at the time found that:

“On review, we conclude that the RD correctly found that the petitions could not be processed under 5 U.S.C. § 7111 because of the Under Secretary’s decision to exercise his unfettered discretion to preclude TSA screeners from being represented by an organization for the purposes of engaging in collective bargaining with the Agency. As such, we conclude that the RD did not fail to apply established law under § 2422.31(c)(3)(i) of the Authority’s Regulations and, therefore, deny the application for review with regard to these issues.”

On May 14, 2004, in 367 F.3d 932, the United States Court of Appeals, District of Columbia Circuit found that:

“The FLRA’s decision that the screeners could not engage in collective bargaining, and thus were not entitled to union representation, was final in every sense of the word…”

So after the candidate’s promise and AFGE’s petition, it appears that the Acting Regional Director is asking the current Transportation Security Administrator do you still mean what you said in 2003?
The problem for TSA and its parent, the Department of Homeland Security, is whether to reaffirm the earlier Agency decision or roll over and let AFGE organize. Either course has enormous repercussions for the Agency in terms of its authority, the scope of future negotiations and what some might call a concern for the public fisc (Not a phrase you hear every day and defined as “a state treasury or exchequer or a royal treasury; originally the public treasury of Rome or the emperor’s private purse.”).
As the FLRA stated in its 2003 decision,

“First, in 49 U.S.C. § 114(n) (as codified), Congress stated:

The personnel management system established by the Administrator of the Federal Aviation Administration under section 40122 shall apply to employees of the Transportation Security Administration, or, subject to the requirements of such section, the Under Secretary may make such modifications to the personnel management system with respect to such employees as the Under Secretary considers appropriate, such as adopting aspects of other personnel systems of the Department of Transportation.

Second, in 49 U.S.C. § 44935 Note, Congress stated:

Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions of the Under Secretary under section 44901 of title 49, United States Code. The Under Secretary shall establish levels of compensation and other benefits for individuals so employed.” 

As a previous FLRA General Counsel opined:

“The Statute does not totally preclude bargaining over matters addressed in law or government-wide regulation. Rather, as long as a proposal does not conflict with the law or government-wide regulation, and the law or government-wide regulation does not divest the agency of discretion over the matter addressed in the proposal, the matter may be subject to negotiations.”

It appears then that should TSA permit union recognition then the Agency must surely bargain compensation and everything else listed in the above decision. A good idea when most of the unionized employees in the Federal service don’t bargain such things, a decision to be left to political appointees, the right thing to do for the American taxpayer? You decide.
Of course, there’s always HR 1881, a proposed law this author believes DHS and TSA were hoping passed before they had to recognize a union. That bill puts the Transportation Security Officers (formerly called screeners) squarely in Title 5 without expanded bargaining rights. Apparently, the Congress has bigger fish to fry than saving TSA from itself, so let’s see what else is possible.

FLRA Politics and Possibilities

A number of things may happen in the coming days.
First, let’s say TSA tells FLRA’s Acting Regional Director that it chooses to maintain its statutory authority as supported by 59 FLRA No. 63 discussed above. Wouldn’t you think that’s the end of it? After all, we have a precedent decision which one assumes binds the FLRA Region and nothing has changed, right?
The rub is that the Acting Regional Director’s boss is one Carol Waller Pope, currently Chair of the FLRA. Ms. Pope issued a dissent in 59 FLRA No. 63 in which she scolded the then members as follows:

“In addition to ignoring the wording of § 44935, the majority also conflates the matter of the scope of bargaining with the matter of coverage under the Statute, asserting that by “seeking to be formally recognized as the exclusive representative of these employees[,]” the Petitioner “attempt[s] to override” the Agency’s determination that it “will not bargain over terms and conditions of employment.” Id. at 14. This is nonsense. “(My Emphasis)

Strong words, huh?
So, knowing his boss’ view, if TSA says no, will the regional director dismiss the petition or grant it and move to an election? I hope not the latter for the sake of the rule of law. The former, however, may not make the boss happy.
Second, this may have all the makings of a setup. AFGE files the petition, TSA sticks to its guns, the Action Regional Director dismisses the petition, AFGE appeals to FLRA and Ms. Pope and her fellow democratic appointee member reverse 59 FLRA No. 63 and order an election among the TSOs. Will this be another triumph of the FLRA in arrogating to itself Agency prerogatives? We’ll see.
Third, TSA may give the go-ahead to the Acting Regional Director by reversing its earlier stance. In that case, the petition likely goes forward. This would clearly appear to many a politically motivated decision in which, perhaps, pressure and not good judgment won out. Wait for the Hill, TSA. It’s the right thing to do.
Barack Obama once said,

“We face a deficit of trust — deep and corrosive doubts about how Washington works that have been growing for years.”

He’s certainly right about that. He also didn’t say he would give TSOs bargaining rights but “work to ensure” that outcome. To all the politicals involved, maybe that work isn’t done yet, huh?
As always, any opinion is my responsibility alone.

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.