“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
“applauded the Federal Labor Relations Authority’s prompt handling of its petition for exclusive union representation at the Transportation Security Administration.”
“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 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.”
“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…”
“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.”
“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.”
FLRA Politics and Possibilities
“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)
“We face a deficit of trust — deep and corrosive doubts about how Washington works that have been growing for years.”