In March, Fedsmith published an article titled, Is an FLRA Regional Director Going to Violate the Law in TSA Union Recognition Case? The article included this comment: "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."
In a demonstration of case law correctness and maybe a bit of fortitude, Peter Sutton, FLRA’s Regional Director, dismissed the union’s petition citing two reasons:
A. The TSA decision requires dismissal of the petitions.
B. AFGE has not demonstrated that that the Loy directive violates the Constitution.*
The decision hints that AFGE provided a more broadly argued brief than NTEU. If true, careful NTEU or you will lose your first seed in the annual "most litigious Federal union" contest.
As a reminder, the Federal Labor Relations Authority (FLRA) in an earlier decision (sustained by a Federal Court) found that the Transportation Security Administration (TSA) was within its authority to deny an election or even collective bargaining under its enabling legislation.
At the time, Member (and now Chairman) Carol Waller Pope, in a somewhat funky dissent, said that TSA employees could have an election but not engage in collective bargaining. No kidding, that’s what she said.
She also said Congress specifically excluded Agencies from collective bargaining and, even funkier, FLRA was one of them despite the fact that it recognizes a union of its own employees now.
The Census recently found that District of Columbia has 13.8 times the number of lawyers per capita than any state in the union. It must be that only they can read or understand a law or case decision and then only when inside the Beltway. Or so it seems to those of us outside. Maybe it’s the water or, more likely, the pheromones of power wafting through the halls. It was clear to Director Sutton in Chicago. Now we’ll see how it smells in DC.
The most interesting aspect is TSA’s take on the issue. Even with an Obama administration friendly to unions, TSA has repeated its stance that it had discretion to engage (or not) in collective bargaining. If you recall from my earlier scribblings, if TSA recognizes a union without a change in its statute (i.e., moving into title 5), it will likely be ordered to bargain pay.
Also, managers will lose the hiring and firing flexibility they now enjoy. Theft, drug possession or use and alcohol abuse are currently mandatory removal offenses at TSA. As a frequent traveler, I like knowing that the hands that literally reach into my luggage, pocket or wallet face stiffer penalties for stealing or substance abuse than office workers at SSA.
Of course, Ms. Napolitano (Secretary of the Department of Homeland Security) may be simply waiting for another organization, whether the Congress or its (self-identified) more powerful counterpart, the FLRA, to take this stinky mess and clean it up rather than having to do it herself. Remember that the FLRA’s election decisions are hard to get into the courts. Stay tuned.
Oh, and Mr. Beck keep your pencil sharp. Stay tuned. As Yogi Berra said, "it ain’t over til it’s over."
As always, any opinion expressed above is mine and mine alone.
*The "Loy Directive" was the earlier TSA decision to withhold collective bargaining rights. Admiral Loy had served as the Commandant of the Coast Guard for four years before he was appointed Deputy Secretary of Homeland Security and took up the reins of TSA.