Transportation Security Administrator John Pistole’s “Determination – Transportation Security Officers and Collective Bargaining” appears to represent the Obama Administration’s view concerning collective bargaining in the absence of a specific statute. It turns out they are almost like any other management but not quite. If you’re a Federal sector practitioner, please take a few minutes to read the determination. It’s unlike any document I’ve read before. I know, I know, I said that about the FLRA’s TSA election decision too.

According to Mr. Pistole, the FLRA’s decision to conduct an election under the Federal labor law doesn’t conflict with his decision that his law (“§111d of ATSA (49 USC §44935 note”)) “supercedes the Federal Services Labor-Management Relations Statute ( 5 USC Chapter 71)” (Page 6.). Soooo itsss OK thissss time onlyyyyy, huh? I guess that’s what he’s saying.  Of course, that’s not what the FLRA said in its decision:

Although the instant case is distinguishable from the above-cited decisions, in that the TSOs at issue here currently lack any right — rather than a limited right — to engage in collective bargaining, we find this to be a distinction without a meaningful difference in terms of whether the election petitions should be processed. In this regard, even if one of the labor organizations is certified but precluded from engaging in collective bargaining, the Statute provides exclusive representatives with several rights separate from negotiating collective bargaining agreements.[10] For example, § 7114(a)(1) provides exclusive representatives with not only the right to “negotiate collective bargaining agreements covering” unit employees, but also a separate right to “act for[]” those employees. Additionally, § 7117(d)(1) gives certain exclusive representatives the right to “consultation rights[,]” separate and apart from the right to engage in collective bargaining. Further, § 7114(a)(2)(A) entitles the exclusive representative to be represented at certain “formal discussion[s] . . . concerning any grievance or any personnel policy or practices or other general condition of employment[.]” In this connection, the Authority has held that the definition of “grievance” is not dependent on the scope of a negotiated grievance procedure. See Luke Air Force Base, Ariz., 54 FLRA 716, 730 (1998), rev’d 208 F.3d 221 (9th  Cir. 1999). As such, the right of an exclusive representative to attend formal discussions under § 7114(a)(2)(A) does not require the existence of a collective bargaining agreement.

Moreover, § 7114(a)(2)(B) entitles the exclusive representative to be represented at any agency representative’s examination of a unit employee (Weingarten discussion) if “the employee reasonably believes that the examination may result in disciplinary action” and “the employee requests representation.” In this regard, the Authority has held that the rights regarding Weingarten discussions under § 7114(a)(2)(B) “are not tied to collective bargaining.” Dep’t of Veterans Affairs, Veterans Affairs Med. Ctr., Jackson, Miss., 48 FLRA 787, 793 (1993), recons. denied, 49 FLRA 701 (1994). Thus, the fact that an exclusive representative lacks collective bargaining rights does not nullify Weingarten rights under § 7114(a)(2)(B).

In sum, a certified, exclusive representative has several rights under the Statute that are not dependent on the right to negotiate collective bargaining agreements. (65 FLRA N0.53 11/12/2010)

The rights cited by the FLRA in its decision are somewhat covered in Mr. Pistole’s Determination but more of that later.

The Election

Mr. Pistole’s Determination sets forth election and campaigning rules (page 16-18) that are substantially different from those established in FLRA policy or case law. He says, broadly, that “Failure to comply with management neutrality requirements will constitute grounds for corrective or disciplinary action”. Well, I guess there’s no free speech rule at TSA. Federal labor law holds that:

5 USC 7116(e) The expression of any personal view, argument, opinion or the making of any statement which—

(1) publicizes the fact of a representational election and encourages employees to exercise their right to vote in such election,

(2) corrects the record with respect to any false or misleading statement made by any person, or

(3) informs employees of the Government’s policy relating to labor-management relations and representation,

shall not, if the expression contains no threat of reprisal or force or promise of benefit or was not made under coercive conditions,

(A) constitute an unfair labor practice under any provision of this chapter, or

(B) constitute grounds for the setting aside of any election conducted under any provisions of this chapter.

Maybe they’ll send allegedly offending managers to Gitmo.

By the way, the Determination is full of this kind of stuff. In any case, let me go on record that I believe that the General Counsel of the FLRA must issue an unfair labor practice complaint based on 65 FLRA No. 53 for alleged election violations by the Agency, or the involved unions if one is filed and not settled. FLRA is absolutely not finished with TSA if given even a split hair’s opening in the door to expand its jurisdiction. Once FLRA took on the election, it opened the door to allegations of unfair labor practices which we all know it doesn’t want to shut.

Dispute Resolution

TSA has reinvented the wheel. It says in the Determination that it will, “without delay, develop a unitary dispute resolution system” (my emphasis). The system will be developed before the election and its details shared with the winning union and TSA will consider the union’s input comments and concerns. If any of you reading this have bargained with either NTEU or AFGE, I’m sure that like me, you’d relish the opportunity to hear either union’s input on a resolution system that wasn’t bargained but imposed on the day of recognition. The acronym alone for the process conjures all kinds of images, none of which are particularly favorable.

Like the FLRA decision that led to this particular nonsense, one could go on and on. Even a quick read of the Determination’s will bring you face to face with unit ratification v. union ratification; the right of the winning union not to represent a non member; mandated interest based bargaining (whatever that means); exclusion from the unit of those that are “part of management”. The Determination could be summed up as follows:

We didn’t want to do this but the President promised they could have a union then the FLRA stuck its nose in it, then we didn’t want the law that governs Customs and Border Protection despite the fact that we’re in the same Agency doing security work and because we’re Democrats, we had to be politically correct and employee friendly when we wrote it but we really don’t want to do this because were supposed to be security people and we don’t care that its gonna result in tons of litigation and is poorly thought through ‘cause we’ll dump it on the next Administration ‘cause it doesn’t look like that’ll be us.

As always, any personal view you discern is mine and mine alone.