May 21, 2004

The American Federation of Government Employees is evaluating its next step to organize federal airport screeners after a court ruling blazed new legal ground, according to a union lawyer.

In a case that is full of technical trappings, AFGE and the Transportation Security Administration have been dueling for more than two years over whether tens of thousands of federal airport screeners can unionize.

The May 14 ruling did not address whether TSA screeners can unionize.

Shortly after TSA was created, AFGE filed several petitions with the labor relations authority seeking elections among security screeners at a number of airports. The union also asked to be certified as the screeners' exclusive representative for collective bargaining.

In January 2003, former TSA Administrator James Loy issued an order that TSA would not bargain with screener unions, saying that screeners "shall not, as a term or condition of their employment, be entitled to engage in collective bargaining." Loy said union membership "was not compatible with the flexibility required to wage the war against terrorism."

AFGE contended that Loy's directive violated the Constitution and the 2001 Aviation and Transportation Security Act. The union filed a complaint in district court arguing that Loy did not have the statutory authority to issue his directive.

While the case was pending before the district court, the FLRA ruled that Loy's directive relieved TSA of any "duty to bargain over conditions of employment of security screeners." The FLRA dismissed the union's petitions, saying Loy's directive was valid.

The D.C. District Court ultimately dismissed the union's statutory claims, holding that the FLRA has exclusive authority over conducting elections to determine whether a labor union has the support of a majority of employees in an appropriate unit, and that Loy's directive deprives FLRA of jurisdiction to conduct an election for TSA screeners.

AFGE thought the FLRA's decision to dismiss election petitions was final and could not be appealed, Frieder said.

The appeals court, however, said that the decision could be reviewed by the appeals court itself.

Frieder said the May 14 appeals court ruling alters the law as it stands in D.C. and actually puts it in conflict with previous rulings made by the U.S. Court of Appeals for the Fifth Circuit.

In order to bring the case up again, however, the union has to start all over, Frieder said. In short, the union would have to get 30 percent of screeners at an airport to show interest in organizing with AFGE. Then, the union would have to file an election petition with FLRA. Theoretically, FLRA would reject the petition as it did before, which would then allow AFGE to go directly to the appeals court.

"We believe that there is still interest by screeners in being unionized. Nevertheless, a 30 percent showing is pretty substantial," Frieder said. "We are currently evaluating which airport would be the most interested. When we file the election petition, that will be a clear sign that we are following through to bring this up for review again."

TSA spokesman Darrin Kayser said the court agreed with TSA's interpretation of the law that the FLRA does not have authority to conduct an election or certify a union for screeners.

"The court agreed with our position," he said. "We will continue to work with our employees to ensure that we have a model workplace, and we'll continue to listen to their concerns and address those concerns as we have aggressively done in the past."

The district court also rejected the union's constitutional claims that screeners have a First Amendment right to engage in collective bargaining and that Loy's directive violated the equal protection component of the Fifth Amendment's due process clause.

The appeals court, however, said the district court did not have jurisdiction to rule on those claims.