Was TSA Head’s Meeting with AFGE President an Unfair Labor Practice? You Decide.

AFGE issued a press release stating that “TSA Administrator John Pistole met today with AFGE John Gage to discuss collective bargaining and other workplace issues.” Does that meeting constitute an unfair labor practice?

AFGE issued a press release
on August 20, 2010 stating that “TSA Administrator John Pistole
met today with AFGE John Gage to discuss
collective bargaining and other workplace issues.”

You may recall that the American Federation of Government
Employees (AFGE) and the National Treasury Employees Union (NTEU) are embroiled in a campaign
to gain recognition of TSA’s employees. Also the unions are involved in a case with the Federal Labor Relations
Authority over whether TSA must recognize unions at all. In 2003, the FLRA supported TSA’s
reading of its enabling legislation that gave TSA and its parent, the
Department of Homeland Security the right to determine whether or not TSA
employees may unionize. President
Obama promised bargaining rights in his campaign but such a decision has not
been forthcoming.

 I predicted in an earlier article that the current
Chairman of the FLRA would reverse the earlier decision based on politics and
her dissent in the earlier case when she was in the minority. As you will see below, maybe she won’t do that.

Why an Unfair Labor

There’s a provision of the Federal labor law that holds
the following:

U.S. Code § 7116 (a) For the purpose of this chapter, it shall be an unfair labor
practice for an agency— (3)
to sponsor, control, or otherwise assist any labor
organization, other than to furnish, upon request, customary and routine
services and facilities if the services and facilities are also furnished on an
impartial basis to other labor organizations having equivalent status”

There is a precedent case involving a recognition campaign
in the Army (29 FLRA No. 82) that found the exact kind of meeting held between Mr. Pistole and Mr. Gage
constituted an unfair labor practice. You can read from the FLRA decision and decide for yourself. Here’s a pertinent quote from the decision:

“The basic
issue in Case No. 6-CA-60105 is whether the Department of the Army interfered
with or coerced employees’ free exercise of their rights to select an exclusive
representative. The specific issue before us is whether Fort Sill bargaining unit
employees would reasonably infer that management expressed a preference for the
Teamsters from the actions of two key Army officials in meeting and dealing
with Teamsters’ representatives at an October 10th meeting regarding
contracting out at Fort Sill. By use of the term ‘meeting and
dealing,’ we include meeting with Teamsters’ representatives, listening to
their concerns, discussing their problems, and replying to those concerns and

The case goes on to say:

“In agreement
with the Judge, we find that this conduct by management provides a sufficient
basis for finding that the Agency violated its duty of neutrality during the
pendency of a QCR. From this conduct, employees reasonably could infer
management’s preference for the Teamsters. Such conduct constitutes
interference with the employees’ right to freely choose who should be their
exclusive representative.”

NOTE: A QCR is a Question Concerning Representation
in this case a petition to hold an election – Author

While the employees in the Army case already had a union,
that union was being challenged for recognition and the challenger had filed a
petition to do just that. In the
case of TSA, the employees are not yet in an existing recognition but that
should make no difference as agency management may not give the appearance of
favoring one union over another in either situation.

FLRA’s Conundrum

What’s really interesting about all this is
that FLRA has before it a petition, denied by its regional director, which
would make the union’s recognition petition valid; therefore arguably rendering
Mr. Pistole’s conducting in meeting with AFGE a violation. So I wonder if this will affect FLRA’s
decision making i.e., if they dismiss the union’s appeal of the RD’s decision,
then Mr. Pistole can’t have committed a ULP but if they reverse the regional director, maybe he

Who May File A ULP Charge

According to FLRA’s regulations at 5 CFR § 2423.3:

“Any person may charge
an activity, agency or labor organization with having engaged in, engaging in,
any unfair labor practice prohibited under
5 U.S.C. 7116.” 5
CFR § 2421.2 says: ‘Person’
is defined as “an individual, labor organization, or agency.”

So who might file such a ULP. Well, NTEU might if they weren’t at the meeting (AFGE’s press
release didn’t say). Any other
union who’d like to file a petition down the road might, perhaps NAGE or NFFE for
starters. And, of course, there’s
always “any person.”

As always, any opinion stated in this article are mine and
mine 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.