AFGE and TSA Reach Agreements, Lots of Questions Remain

AFGE and TSA have apparently reached agreement on a new labor agreement. There are some questions that should be asked but have been ignored by the media.

Recently, there was considerable hype about the agreements (two of them) that the American Federation of Government Employees apparently reached with the Transportation Security Administration. The first agreement involving everything (one assumes) except dispute resolution was signed on August 2. The second agreement addressing bargaining unit employee appeals and grievances was marked as a “TSA Proposal.” The copy linked here is signed by AFGE President John Gage on July 12. It is not signed by TSA.

Regarding what AFGE touted as “the collective bargaining agreement”, I couldn’t find a copy on the web. AFGE, however, put out a list of “Highlights”. It should come as no surprise that these addressed apparently favorable parts of the agreement only. We’ll have to wait for a copy of the whole thing to figure out what really happened.

Sadly, the news outlets that covered this story took it as advertised and didn’t ask some pretty obvious questions. Among them:

Is TSA really going to give awards for same sex pat downs?

To quote directly from the “Highlights” of the agreement published by AFGE, “TSA will consider for awards the contributions of employee’s bilingual language skills and operational challenges such as same-sex gender pat-downs.”

As a somewhat frequent flier, I thought the challenges faced by same sex pat downs were mostly faced by passengers—not screeners. Another obvious issue appears to be that different sex pat downs are not considered challenging. This whole discussion could only be had in the context of the always wacky world of Federal labor relations and Agency, often mindless, political correctness. Is this a hoot or am I missing something? Next time you get a pat down, you might ask what award your particularly intimate screener is up for and what is operationally challenging about your personal contact moment.

Did TSA Agree to Both Attendance and Time Off Awards?

According to AFGE’s “Highlights,” an employee can get an award for showing up. I really must have missed the boat during my Federal career. I thought I got a paycheck for showing up and annual leave if I showed up enough. Of course, the questioned begged is whether a screener can get a time off award for showing up? Another question, if I’m a screener, is how many days do I have to show up before I don’t have to show up?

Did TSA’s Administrator Really Negotiate the Dispute Resolution Agreement Directly with AFGE’s John Gage and does it mean what Gage says it does?

In an interview with the Federal Drive, AFGE’s Gage is quoted as follows:

Discussion of a due process was not part of the contract negotiations. Gage said he had separate discussions for four months with TSA Administrator John Pistole to establish a “fair, third-party grievance and arbitration system.” Now, TSOs have Merit System Protection Board rights, as all other federal employees have, Gage said. TSOs are also entitled to expedited arbitration on lesser discipline issues and workplace disputes, he added.

I can’t help but ask, what the heck is an Agency head doing person to person negotiation with a union official? Oops, I forgot, Mr. Pistole got tons of Federal bargaining experience at FBI. But that can’t be right, FBI doesn’t have a union. I know, he stayed at a Holiday Inn Express before every session.

Of course, If Janet Napolitano, Pistole’s boss can bargain with Gage, why can’t he?

According to the following AFGE Press release on the issues at TSA from last January, Janet gave Pistole the “boot:”

NP Gage Meets DHS Secretary Napolitano to Discuss Arbitration

by AFGE TSA Union on Friday, January 6, 2012 at 7:24am ·

AFGE National President John Gage and General Counsel David Borer met Wednesday, January 4, with Secretary of Homeland Security Janet Napolitano and her chief of staff, Noah Kroloff, to discuss the critical need for TSA to establish a fair and impartial grievance and arbitration system for TSOs. Recent meetings with TSA Administrator John Pistole have resulted in zero progress toward an impartial system, so President Gage elevated the matter to the Secretary. He has also been in regular contact with the White House about this issue.

Secretary Napolitano listened carefully to the arguments laid out by President Gage, with her staff asking at one point whether there was a middle ground between AFGE’s proposal for an impartial grievance/arbitration system and what Administrator Pistole had proposed, which would only allow appeals for very few serious disciplinary actions to a Coast Guard appeals board. Gage explained that the TSA proposal is not impartial because the Coast Guard Administrative Law Judges are inside DHS, and because the Coast Guard ALJs have no expertise in employee matters. He also emphasized that AFGE had investigated other options but that nothing else that would be as fair, efficient, and cost effective as arbitration, for both the union and the agency, in adjudicating employees’ cases.

Secretary Napolitano promised to talk to Administrator Pistole and “re-boot” the issue. “We want to get this done now,” she said.

So, according to AFGE, this agreement came about as a result of a bypass of Mr. Pistole to his boss, Ms. Napolitano and a bypass of her to unnamed White house officials. For bargaining preparation, it appears they read the title of Fisher and Ury’s “Getting to Yes” but missed the content. I know, I know, Holiday Inn Express on a regular basis.

“Now, TSOs have Merit System Protection Board rights, as all other federal employees have,” Gage says.

Not true, John. What you got them was an advisory opinion from a MSPB administrative Judge, which the Agency can overrule if it chooses and, if it does, no further appeal is possible. John, please remember from your days long ago as a SSA claims examiner, that Federal competitive and excepted service employees may challenge a removal or suspension over 14 days to the judge, the MSPB, the Federal Circuit Court of Appeals and the Supremes if they’ll take it.

Gage’s claim of expedited arbitration is also only advisory in nature. Lots of hype, not a lot of meat.

How is MSPB Hearing TSA Cases?

According to the Dispute Resolution Process agreement, TSA has a contract with MSPB to provide these services based on the language of FAA and TSA’s enabling legislation. According to the contract, TSA reimburses MSPB for these services.

Now I’ve got that TSA can contract with another Federal Agency, but what authority does MSPB have to enter into such a contract to take money for its services? If I were up on the Hill looking at MSPB’s appropriation, I think I would be asking where it is authorized to take other than appropriated funds (to the Board) to do anything?

We all know that GSA can contract with Agencies, maybe MSPB will start buying Office space from GSA and selling it on the open market. Silly? I know from my Agency days that the ones I worked for had to have a specific statutory authority to accept payments. I guess the union lawyers now running the Board didn’t get that in basic training.

And on, and on. Lots of issues wrapped up in all this, political, legal, civil service, smart government management, etc. But that’s enough fun for this article.

As always, I alone am responsible for the content and any opinion one may discern from reading this article. The quotes are just that. I couldn’t have made them up if I had tried.

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.