By Bob Gilson FedSmith Monday, February 23, 2009
Back in November, FedSmith published articles about promises then candidate Obama made to John Gage, National President of the American Federation of Government Employees (AFGE). One of those read as follows:
"Advocating for TSOs to receive collective bargaining rights and workplace protections will be a priority for my administration. It is unacceptable for TSOs to work under unfair rules and without workplace protections - this makes it more difficult for them to perform their jobs. Since 2001, TSA has had the unfettered ability to deny its workforce even the most basic labor rights and protections." -Barack Obama, October 20, 2008
It should be no surprise that the series (more than I can count) of Republican appointed Transportation Security Administration (TSA) Administrators took advantage of an interesting quirk in the law and decided that Agency employees would not be permitted to organize.
Pay Bargaining at TSA?
TSA's enabling legislation has the following language:
"Screener Personnel.-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." -49 U.S. Code
Of course, the job has morphed into an Administrator reporting not to Transportation but Homeland Security but the authority stayed the same. This language is similar to that of some of the banking Agencies and others (e.g., FDIC, OCC, SEC) which, the courts found that because the Agency Head had discretion to set pay, he or she had an obligation to bargain pay with unions representing the workforce. Time and, I'm sure, a number of lawsuits will likely decide the issue at TSA unless the Democrats decide to bargain pay from the start.
This could get interesting since the Congress has micromanaged TSA from its inception. So would oversight/appropriations committees in the House and Senate hand the largest single budget line item, labor dollars, over to political appointees or (God forbid!) nonpolitical civil servants to negotiate away? It's easier in FAA and other pay bargaining Agencies to live with since virtually all get their money from fees not taxes.
The Clouds of Battle Loom on the Horizon
Rumor has it that both AFGE and the National Treasury Employee Union (NTEU) plan an all out struggle to win recognition for as many of the Transportation Security Officers (TSOs) as each can organize. In addition, nothing stops the Service Employees (SEIU), a favorite of President Obama, through its Federal arm, the National Association of Government Employees (NAGE), the National Federation of Federal Employees (NFFE) or others from jumping into the fight as well.
NTEU may still be licking its wounds from the 1990s' run to displace AFGE at the Social Security Administration Headquarters which it not only lost but spent in excess of $8 million doing so. It may be called a rematch since AFGE President Gage was at the time, the President of Local 1923 at SSA HQ.
So What's Next?
First, TSA's Administrator must give a go ahead to allow organizing. Once that's done and assuming the Federal Labor Relations Authority (FLRA) has jurisdiction, a union who wants to represent must file a petition with FLRA signed by 30% of the employees in an appropriate bargaining unit to get an election. Why only one? Well, once one union gets 30%, the others only need 10% of the proposed union to get their names on the ballot. That's the simple answer but, as with all things Federal, nothing is ever simple as you'll see below.
How Will the Agency Weigh In?
Above I used the term "appropriate unit" and as Shakespeare's Hamlet advised us, "there's the rub".
TSA has a complicated organizational structure. There's a headquarters and five regions which, one might assume, rule the roost. The problem is that there are a number of Category X (the largest) airports whose Federal Security Directors (FSDs) manage not only an airport like O'Hare or LAX or DFW but smaller outlying airports including those in Categories 1-4 in order of diminishing size.
It gets even more complicated because there are FSDs that don't run a big Cat X but operate "Hub and Spoke" operations on a statewide basis. All would be well if it were absolutely clear, as for example, in a pyramid structure such as those in Defense agencies. But, alas, the locus of personnel authority, a key determinant in what makes up a unit, are not all that clear in TSA.
What all this boils down to is that the Agency has a lot of clout in the process. If it decides that the only "appropriate unit" is nationwide and FLRA agrees, then whoever wants to represent must get 30% of all employees eligible to be represented. If the Agency leans toward a regional unit then the big Cat Xs will play a role but might cancel each other out if the unions get a foot into different ones. The Agency could permit, with FLRA's approval, a recognition at each Cat X or each Hub and Spoke.
There's other shoes to drop in this process. One big one is the status of "Leads". As you go through the line at an airport, look at the TSO's epaulets. One bar is a TSA, two bars is a Lead TSO and three bars is a Supervisory TSO. Supervisors are not permitted to be represented under Federal sector labor law but the status of "leads" has been the subject of litigation in lots of Agencies.
Another interesting note is that whatever the Agency decides to do, it's likely to be accused of favoring one union over another by its decision.
So When Will All This Fun Start?
First, TSA's Administrator has to give a green light to employee eligibility to be represented. Then the unions will start organizing drives under the law. They've been organizing TSA unofficially for years but not they'd have the legal "right" to do so. There are clearly established rules that unions and management must follow in organizing drives but that's for a later article.
The next step is the filing of petitions followed by a determination whether the union is appropriate followed by an election. One thing is sure, no matter who does what, it's not likely to be over soon. Stay tuned for further developments.
As always, anything vaguely representing an opinion in the above is mine and mine alone. I'm sorry for any computing confusion over the Advanced Labor and Employee Relations course in Boston at the end of March. If you go to www.grainc.com go to the GRA website and click on Register Now for Advanced ER/LR Training on the front page, I'm advised you'll get to the right place. If not email me and I'll get you there.
© 2009 Robert J. Gilson
http://www.fedsmith.com/article/1880/
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