United States, Department of Homeland Security, Border and Transportation Security Directorate, Transportation Security Administration (Agency) and American Federation of Government Employees, AFL-CIO (Labor Organization/Petitioner) (Authority decision, November 4, 2003)

Read the official release (flra.gov)

Final FLRA representation decision. This order affirms dismissal of petitions seeking representation elections for Transportation Security Administration screeners. It ends these petitions without an election and does not decide an appropriate-unit question under 5 U.S.C. § 7112. Under 5 U.S.C. § 7123(a), an aggrieved person generally has 60 days from issuance to petition a court of appeals for review of a final Authority order.

Plain-English summary

AFGE sought elections to represent TSA passenger, baggage, and lead screeners. A regional director dismissed the petitions after the TSA Under Secretary determined that security screeners would not be represented for collective bargaining. The Authority granted review because it had no prior decision on the statutory issue, but agreed that the Aviation and Transportation Security Act gave the Under Secretary discretion over screeners' terms and conditions of employment. It held that the election process could not be used to create a representative without collective bargaining authority, and affirmed dismissal of the petitions. The Authority did not reach AFGE's constitutional arguments because they had not been raised before the regional director. Member Pope dissented in part, reasoning that the right to choose a representative was distinct from the scope of bargaining.

Decision snapshot

• Authority: 5 U.S.C. § 7111; 49 U.S.C. § 44935 note; 5 C.F.R. § 2422.31(c).
• Outcome: Review granted, regional dismissal of 14 election petitions affirmed.
• Key point: The majority held that the screener election petitions could not proceed after the Under Secretary excluded representation for collective bargaining.

Full text (FLRA public release)

[ v59 p423 ]

59 FLRA No. 63

UNITED STATES

DEPARTMENT OF HOMELAND SECURITY

BORDER AND TRANSPORTATION

SECURITY DIRECTORATE

TRANSPORTATION SECURITY

ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

AFL-CIO

(Labor Organization/Petitioner)

WA-RP-03-0023

BN-RP-03-0008

BN-RP-03-0012

CH-RP-03-0018

WA-RP-03-0029

DA-RP-03-0002

CH-RP-03-0021

BN-RP-03-0015

BN-RP-03-0016

AT-RP-03-0012

CH-RP-03-0025

CH-RP-03-0037

CH-RP-03-0038

WA-RP-03-0063

_____

DECISION AND ORDER

ON APPLICATION FOR REVIEW

November 4, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This case is before the Authority on an application for review filed by the Petitioner under § 2422.31(c) of the Authority's Regulations. The Petitioner seeks review of the Regional Director's (RD's) decision to dismiss petitions seeking elections to determine whether employees, including passenger screeners, baggage screeners, and lead screeners, of the Transportation Security Administration (TSA) wish to be represented by the Petitioner for the purpose of collective bargaining. For the reasons that follow, we grant the Petitioner's application for review and affirm the RD's decision to dismiss the petitions.

II. Background and RD's Decision

The Union filed petitions seeking elections to determine whether employees, including passenger screeners, baggage screeners and lead screeners for the TSA, wished to be represented by the Petitioner for the purpose of collective bargaining. RD's Decision at 2. In resolving this question, the RD first noted that "there are no material facts in dispute on the issue of jurisdiction and that the record contains sufficient evidence on which to base a decision on the issue of whether the Authority has jurisdiction to conduct elections as requested by the Petitioner." Id. at 3 (citing Federal Mediation and Conciliation Serv., 52 FLRA 1509, 1516 (1997).

In November of 2001, Congress passed the Aviation and Transportation Security Act (ATSA) which created the TSA, a department within the United States Department of Transportation. See 49 U.S.C. § 114. Within the language of the ATSA, two provisions are of particular importance to this matter. First, in 49 U.S.C. § 114(n) (as codified), Congress stated:

The personnel management system established by the Administrator of the Federal Aviation Administration under section 40122 shall apply to employees of the Transportation Security Administration, or, subject to the requirements of such section, the Under Secretary may make such modifications to the personnel management system with respect to such employees as the Under Secretary considers appropriate, such as adopting aspects of other personnel systems of the Department of Transportation.

Second, in 49 U.S.C. § 44935 Note, Congress stated:

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. [n2] [ v59 p424 ]

Based on the above language, on January 8, 2003, the Under Secretary of Transportation for Security issued a memorandum regarding the collective bargaining rights of TSA security screeners. It stated as follows:

By virtue of the authority vested in the Under Secretary of Transportation for Security in Section 111(d) of the Aviation and Transportation Security Act, Pub. Law No. 107-71, 49 U.S.C. § 44935 Note 2001, I hereby determine that individuals carrying out the security screening function under section 44901 of Title 49, United States Code, in light of their critical national security responsibilities, shall not, as a term or condition of their employment, be entitled to engage in collective bargaining or be represented for the purpose of engaging in such bargaining by any representative or organization.

In November of 2002, prior to the issuance of this memorandum, Congress enacted the Homeland Security Act (HSA), Pub. L. No. 107-296, 116 Stat. 2135 (2002), which created the Department of Homeland Security (DHS). As the missions of both the TSA and DHS were similar in nature, (i.e., to prevent terrorist attacks within the United States, reduce the vulnerability of the United States to terrorism, minimize the damage from attacks and assist in the recovery from terrorist attacks) the TSA was transferred to the DHS. HSA, § 403(2), 6 U.S.C. § 203. However, as noted by the RD, "Congress provided that the Transportation Security Administration would remain a `distinct entity' within the DHS for two years following the enactment of the legislation" and that the Under Secretary of Transportation for Security would now be known as the Administrator of the Transportation Security Administration (referred to as the "Under Secretary" throughout this decision). RD's decision at 14 n.25, (citing 6 U.S.C. § 234).

The RD set forth the following issues for resolution:

(1) Did Congress intend to confer on the Under Secretary of the Agency sole and exclusive discretion to determine conditions of employment of security screening personnel and thus to exempt the Agency from the obligation to bargain collectively with a labor organization under chapter 71 of title 5 of the U.S. Code?

(2) Did the transfer of the Agency to the Department of Homeland Security alter the original intent of Congress in regard to the discretion that the head of the Agency exercises in the employment of security screening personnel?

(3) Even if the Agency is exempt from the obligation to bargain collectively under chapter 71 of title 5, may the Federal Labor Relations Authority conduct an election for the purpose of determining whether the Petitioner may exercise on behalf of security screening personnel any of the rights set forth in chapter 71 of title 5?

RD's Decision at 15-16.

With respect to the first issue, the RD found that Congress intended the Under Secretary to have "sole and exclusive" discretion to determine matters that otherwise are established by statute, such as the various rights granted employees by chapter 71 of title 5, U.S.C.. RD's Decision at 20. In support of this conclusion, the RD referred to 49 U.S.C. § 44935 Note, and determined that:

[o]f particular relevance to the analysis here, the Authority has noted that where a statutory provision pertaining to a given subject matter provides for the matter to be determined "notwithstanding" or "without regard to" any other law, the provision affords agency officials "sole and exclusive discretion" to determine the subject matter.

RD's Decision at 20-21 (citing United States Dep't of Defense, National Imagery and Mapping Agency, St. Louis, Mo., 57 FLRA 837, 853 n.10 (2002) (NIMA)).

Moreover, in making this determination, the RD rejected the Petitioner's arguments pertaining to 49 U.S.C. § 114(n), in which the Petitioner argued that Congress had not excluded collective bargaining for screeners and that the Under Secretary's discretion to eliminate collective bargaining was limited by 5 U.S.C. Chapter 71. RD's Decision at 21, 23. Rather, the RD determined that based on the plain language of the ATSA and its legislative history, Congress "intended to treat security screeners differently than other employees of the Agency and to grant to the Under Secretary unfettered discretion in making decisions about `terms[] and conditions of employment of Federal service' of the security screeners apart from the requirements of 49 U.S.C. § 40122." RD's Decision at 22 (citing United States Dep't of Veterans Affairs, Hunter Holmes McGuire Med. Ctr., 54 FLRA 471, 475-76 (1998)). [ v59 p425 ]

Additionally, the RD rejected a related argument of the Petitioner by noting that he found "nothing in the Petitioner's submissions in this proceeding to support a conclusion that only chapter 71 of title 5, and none of the other provisions of 49 U.S.C. § 40122(g)(2), was retained under the ATSA to be applicable to security screener personnel." RD's Decision at 23.

Finally, the RD determined that "nothing in the specific provisions in ATSA, section 111 regarding training and employment standards of security screeners is inconsistent with the unfettered discretion conferred on the Under Secretary by section 111(d)." Id. at 23 (citing Colorado Nurses Association v. FLRA, 851 F.2d 1486, 1491-1492 (D.C. Cir. 1988) (cited for proposition that courts have favored granting discretion in the context of a specific statutory scheme or focus on types of employees or subject matter, as against the general language establishing the obligation to bargain under chapter 71 of title 5). In so finding, the RD noted that:

this conclusion does not nullify section 114(n) of title 49, since that provision continues to apply to all other employees of the Agency; under section 111(d) the discretion is reserved to the Under Secretary to apply to security screeners any aspect of the personnel management system established for other employees of the Agency. RD's Decision at 24.

Turning to the second issue, the RD found that the TSA's transfer to the DHS did not alter the intent of § 111(d) of the ATSA. Id. In reaching this conclusion, the RD noted that both parties agreed that TSA was preserved as a distinct entity and that the DHS was not vested with any authority over the TSA that is not already vested to the Under Secretary pursuant to 49 U.S.C. chapter 449.

With respect to the remaining issue, the RD determined that there is no other basis under the Statute to assert jurisdiction and conduct an election. Id. The RD found that "[a]s the plain language of the Statute shows . . . the purpose of the statutory scheme is collective bargaining [and] [t]here is no evidence of Congressional intent to confer on the Authority the power to determine an appropriate unit and to conduct an election for any purpose other than to determine a representative for collective bargaining." Id. at 26 (citing AFGE, AFL-CIO, Local 2953 v. FLRA, 730 F.2d 1534, 1538 (D.C. Cir. 1984) (Local 2953).

Accordingly, in summary the RD stated:

Therefore, I have concluded that I am without authority under section 7111(b)(1)(A) of the Statute to conduct an election unless the purpose of the representation petition is to determine whether the employees wish to be represented for the purpose of collective bargaining. In Part V(B)(1), I concluded that Congress granted the Under Secretary unfettered discretion in determining the terms and conditions of employment of security screeners. Since Congress intended that the Under Secretary not be compelled to exercise this discretion through collective bargaining, and since the only purpose of this proceeding under section 7111(b)(1)(A) of the Statute is to determine whether the security screeners wish to be represented by the Petitioner for collective bargaining, there is no basis under law to reach any result other than to dismiss these petitions.

RD's Decision at 27.

III. Positions of the Parties

A. Petitioner's Application

The Petitioner argues that the Authority should grant its petition for review because: (1) there is an absence of precedent; and (2) the RD failed to apply established law.

With regard to the above, the Petitioner argues that "[t]here is an absence of Authority precedent regarding TSA and whether the ATSA permits collective bargaining." Application at 5. Moreover, the Petitioner notes that in light of the court's recent decision in AFGE, AFL-CIO v. Loy, No. 03-0043 2003 WL 22076475 (D.D.C. Sept. 5, 2003) appeal docketed, No. 03-5256 (D.C. Cir. Sept. 26, 2003), the Authority has exclusive jurisdiction to determine "whether the Authority has jurisdiction over the TSA." Id. at 5-6.

On the merits of the application, the Petitioner argues that the RD failed to apply established law in three respects because: (1) the statutory construction of the ATSA grants the FLRA jurisdiction; (2) the legislative history indicates Congressional intent for FLRA jurisdiction; and (3) deprivation of FLRA jurisdiction would be a deprivation of Constitutional protection. Id. at 6, 8, 10. Each is detailed more thoroughly below.

First, the Petitioner contends that under 49 U.S.C. § 114(n), the FAA system referenced therein "explicitly incorporates the provision of Title 5 relating to labor/management relations." Id. at 7 (citing 49 U.S.C. § 40122(g)(2)(c)). The Petitioner asserts that under 49 U.S.C. § 40122, the provision "appl[ies] to TSA employees, and the discretion given to the Under Secretary [ v59 p426 ] was to allow for the addition of aspects of other Department of Transportation personnel systems, not deviate from the core elements in the FAA personnel system." Application at 7.

Additionally, the Petitioner argues that the Under Secretary's discretion under § 111 of the ATSA "extends to specific numerated matters, including appointment, termination, fixed compensation and the terms and conditions of employment" but not the right to organize. Id. In making this argument, the Petitioner also cites to 10 U.S.C. § 461 and argues that Congress has used specific statutory language where an agency has nonreviewable discretion to exempt employees from statutory collective bargaining and union recognition.

Second, the Petitioner contends that the legislative history of the ATSA suggests that Congress only gave the Under Secretary discretion to "improve" certain terms and conditions of employment, not eliminate collective bargaining rights. Application at 9-10 (citing Cong. Rec S10446 [daily ed. Oct. 10, 2001] Senator Sarbanes; Cong. Rec. H8313 [daily ed. Nov. 16, 2001] Rep. Schakowsky; Cong. Rec. H7773 [daily ed. Nov. 6, 2001] Rep. Wynn; Cong. Rec. S11980[daily ed. Nov. 16, 2001] Senator Warner; Cong. Rec. H7776 [daily ed. Nov. 6, 2001] Rep. Allen.)

Third, the Petitioner argues that the RD's interpretation and application of the ATSA violates the First, Fifth and Fourteenth Amendments of the United States Constitution. Application at 11. With regard to the First Amendment, it contends that the First Amendment protects the rights of screeners to "organize collectively" and "engage in collective bargaining." Id. (citing NTEU v. Fasser, 428 F. Supp. 295 (1976); Police Officers' Guild, Nat. U. of Pol. Of. v. Washington, 369 F. Supp. 543 (D.D.C. 1973); United Federation of Postal Clerks v. Blount, 325 F. Supp. 879 (D.D.C. 1971); National Association of Letter Carriers v. Blount, 305 F. Supp. 546 (D.D.C. 1969)).

Additionally, the Petitioner argues that the "RD has interpreted the ATSA in such a manner to deprive employees, without any specific justification, of their right to unionize and raise[s] the specter of the ATSA's constitutionality." Application at 12. In so arguing, the Petitioner contends that the RD's interpretation and application of the ATSA violates the equal protection clause (citing both the Fifth and Fourteenth Amendment) and is unconstitutional. [n3]

The Petitioner states that "[t]he war on terrorism is being fought by millions of Americans on a daily basis" and that the majority of those workers have collective bargaining rights. Application at 13. The Petitioner notes that screeners working at five airports under private jurisdiction are all permitted to petition for union recognition. As such, it contends that "[i]t is wholly capricious to deprive this small group of federal workers . . . to form a union and bargain collectively." Id. In this light, it argues that denying the screener personnel union representation to allow the TSA to have greater management flexibility is "laughable" because the TSA has such flexibility in times of emergency under § 7106 (a)(2)(D) of the Statute. Application at 14.

The Petitioner also argues that the language of the ATSA is ambiguous and that in interpreting the ATSA the RD's "examination of the legislative history was incomplete in that it did not consider the totality of Congress' intent." Id. at 16 (citing Cong. Rec. H8313 [daily ed. Nov. 16, 2001] Rep. Schakowsky). Finally, the Petitioner contends that the RD had chosen to ignore "his statutory charge to `provide leadership in establishing policies and guidance'" by finding that the benefits and rights enjoyed by Federal employees generally under Chapter 71 do not apply to screeners. Application at 17-18.

B. Agency's Opposition [n4]

The Agency argues that the RD's decision correctly followed and applied established law. Opposition at 3. In this respect, the Agency contends that § 111(d) of the ATSA (49 U.S.C. § 44935 Note) is clear in stating that the Under Secretary has "exclusive control over employment matters concerning federal airport security screeners." Id. at 2-3. The Agency notes that under § 111(d) of the ATSA that the Under Secretary may fix terms and conditions of employment "[n]otwithstanding any other provision of law[.]" Id. at 2.

Additionally, the Agency argues that the Petitioner's Constitutional claims are without merit and are not properly before the Authority. Id. at 4. Specifically, the Agency contends that these Constitutional issues [ v59 p427 ] were previously raised before the United States District Court for the District of Columbia for the first time in AFGE, AFL-CIO v. Loy, Civil Action No. 03-0043(RMC)(D.D.C. Sept. 5, 2003), and were found to be without merit. Opposition at 4. Moreover, the Agency argues that the Petitioner failed to raise these claims before the RD and should be barred from raising these claims now under the Authority's Regulations. Id. (citing 5 C.F.R. § 2422.31(b)).

IV. Analysis and Conclusions

For the reasons set forth below, we grant review of the Petitioner's application because there is an absence of Authority precedent addressing an issue presented in this case. 5 C.F.R. § 2422.31(c)(3)(i). On review, we conclude that the RD correctly found that the petitions could not be processed under 5 U.S.C. § 7111 because of the Under Secretary's decision to exercise his unfettered discretion to preclude TSA screeners from being represented by an organization for the purposes of engaging in collective bargaining with the Agency. As such, we conclude that the RD did not fail to apply established law under § 2422.31(c)(3)(i) of the Authority's Regulations and, therefore, deny the application for review with regard to these issues.

A. The RD's Decision Raises an Issue for Which There Is an Absence of Precedent

Under 5 C.F.R. § 2422.31(c) the Authority may grant an application for review only when the application demonstrates that review is warranted. [n5] The application for review in this case raises an issue concerning whether passenger screeners, baggage screeners, and lead screeners of the TSA have a right to engage in collective bargaining. The legislation at issue, the ATSA, has been recently enacted and the Authority has yet to address its impact on rights granted to employees under chapter 71 of title 5. Specifically, whether the Under Secretary by his January 8, 2003 memorandum can preclude TSA screener personnel from being represented by a labor organization, is a question of first impression. Accordingly, upon review of the issues involved with this case we grant review of the RD's decision under 5 C.F.R. § 2422.31(c)(1).

B. The RD Did Not Fail to Apply Established Law

Pursuant to 5 C.F.R. § 2422.31(f), the Authority may "rule on the issue(s) in an application for review in its order granting the review." See, e.g., Nat'l Mediation Board, 56 FLRA 1 (2000) (granting the application for review and resolving the issues submitted). Here, the Petitioner notes that based on its application, the Authority has "jurisdiction to process and rule upon the instant representation petitions." Application at 19. The RD also noted that "the Petitioner stated that the jurisdictional issues involve statutory interpretation and questions of law and that in this regard there were no facts in dispute." RD's Decision at 2-3. Accordingly, we find that in resolving the issue of whether the RD properly applied established law in reaching his decision, there is no need for further briefing by the parties under 5 C.F.R. § 2422.31(g).

1. The ATSA Grants the Under Secretary Unfettered Discretion to Set the Terms and Conditions of Employment for TSA Screener
   Personnel

We find that under 49 U.S.C. § 44935 Note, Congress carved out an exception to the general principle that employees of the TSA fall under the personnel management system as set forth, and argued by the Petitioner, in 49 U.S.C. § 144(n). Specifically, under 49 U.S.C. § § 44935 Note, the Under Secretary may in his unfettered discretion, among other things, set the terms and conditions of employment for employees carrying out "screening functions" of the TSA "notwithstanding any other provision of law."

In reaching the above conclusion, we note that in Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993), the Supreme Court stated "[a]s we have noted previously in construing statutes, the use of such a notwithstanding' clause clearly signals the drafter's intention that the provisions of thenotwithstanding' section override conflicting provisions of any other section." The Supreme Court further noted that the "Courts of Appeals generally have interpreted similar "notwithstanding" language . . . to supersede all other laws stating that[a] clearer statement is difficult to imagine.''" Id. (citing Liberty Maritime Corp. v. United States, 928 F.2d 413, 416 (D.C. Cir. 1991). [ v59 p428 ]

Authority precedent is consistent with the Supreme Court's interpretation. As the RD noted, in NIMA, 57 FLRA at 843 n.10, we reiterated that "[w]here a statutory provision pertaining to a given subject matter provides for the matter to be determined notwithstanding' orwithout regard to' any other law, the provision affords agency officials `sole and exclusive discretion' to determine that subject matter." Id. (citing AFGE, Local 3295, 47 FLRA 884 (1993), aff'd sub nom. AFGE, Local 3295 v. FLRA, 46 F.3d 73 (D.C. Cir. 1995); Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988); Colorado Nurses Assoc. v. FLRA, 851 F.2d 1486, 1489 (D.C. Cir. 1988).

Moreover, in finding the above we also reject two additional arguments raised by the Petitioner. First, we do not agree with the Petitioner that the failure of Congress to include language similar to that of 10 U.S.C. § 461 mandates a finding that Congress did not confer unfettered discretion upon the Under Secretary in setting terms and conditions of employment for the screeners. There is no support for the argument that "sole and exclusive discretion" requires the use of the language set out at 10 U.S.C. § 461. Second, given the above, we conclude that the RD correctly found that the Under Secretary has sole and exclusive discretion over the terms and conditions of employment of security screeners. In exercising this discretion, the Under Secretary determined that the Agency will not bargain over the terms and conditions of employment of screener personnel. As such, since the Under Secretary has the unfettered discretion to set terms and conditions of employment, and has chosen to do so, the Petitioner's attempt to override that discretion by seeking to be formally recognized as the exclusive representative of these employees would unlawfully usurp the Under Secretary's authority as it would be contrary to the actions taken by the Under Secretary pursuant to 49 U.S.C. § 44935 Note.

Moreover, we also agree with the RD that, although not specifically raised by the Petitioner here, § 7111 of the Statute allows for the exclusive recognition of a labor organization and that an exclusively recognized labor organization by definition is an entity that has the right to deal with an agency over "grievances and conditions of employment." See 5 U.S.C. § 7103(a)(4) (emphasis added); RD's Decision at 26-27. As the Under Secretary has exercised his discretion to preclude screener personnel from seeking an exclusive representative under the terms of § 7111, the Petitioner is now precluded from, and has not established how it can avail itself of that same statutory process for seeking exclusive representative status and the benefits that such status would afford it. See, e.g., Local 2953, 730 F.2d at 1538.

In this connection, we disagree with the Petitioner to the extent it claims that it has the ability to utilize the procedures established in § 7111 to become an exclusive representative for purposes other than the negotiation of collective bargaining agreements. The process established in § 7111 permits employees to obtain an exclusive representative "for the purpose of collective bargaining." 5 U.S.C. § 7111(b)(1)(A). However, it is clear that a union obtaining exclusive representative status under § 7111 obtains the full range of exclusive representative rights established by chapter 71 of title 5, not just the ability to engage in the collective bargaining process leading up to a collective bargaining agreement. For example, only exclusive representatives are accorded rights under § 7114(b) to be present at certain interactions between bargaining unit employees and agency representatives. Similarly, § 7117 provides only exclusive representatives with the ability to file negotiability appeals. Under § 7114(b)(4), only exclusive representatives have certain rights to information provided for by chapter 71 of title 5. And, of course, only exclusive representatives have the right to engage in collective bargaining for the purposes of executing a collective bargaining agreement, under §§ 7114(a)(1) and 7103(a)(12). Thus, the process established by § 7111 to accord unions exclusive representative status is designed to provide an exclusive representative with all the rights that accrue to an exclusive representative, not just a more limited right to engage only in the collective bargaining process leading up to a collective bargaining agreement.

This is consistent with Authority precedent that has found that the term "collective bargaining" has a broader meaning that just encompassing negotiations. For instance, in Commander Naval Air Pacific, San Diego, Ca., and Naval Air Station Whidbey Island, Oak Harbor, Wa., 41 FLRA 662, 668 (1991) the Authority stated:

[T]he term "collective bargaining" encompasses "the process wherein the agency and the exclusive representative are engaged in the performance of their mutual obligation to bargain concerning the conditions of employment affecting unit employees." 38 FLRA at 519 (emphasis in original). We also concluded that collective bargaining encompasses bargaining, administration of a collective bargaining agreement, third-party dispute resolution procedures, the processing of grievances and cases before the Authority, and other labor-management
[ v59 p429 ] activities that affect unit employees' conditions of employment or a union's status as exclusive representative.

Based on the above, we find that the procedures in § 7111 are designed to grant unions exclusive representative status for the full range of rights and responsibilities accorded an exclusive representative by chapter 71 of title 5.

Moreover, we also agree with the RD that "[t]here is no evidence of Congressional intent to confer on the Authority the power to determine an appropriate unit and to conduct an election for any purpose other than to determine a representative for collective bargaining" such as is being sought here by the Petitioner. RD's Decision at 26. Nor is there any evidence in the legislative history of the ATSA that Congress expressed any intent to create some sort of hybrid exclusive representative in this case. Therefore, since the Under Secretary determined that screener personnel do not have the right to "engage in collective bargaining or be represented for the purpose of engaging in collective bargaining," we agree with the RD that he is "without authority under section 7111(b)(1)(A) of the Statute to conduct an election unless the purpose of the representation petition is to determine whether the employees wish to be represented for the purpose of collective bargaining." RD's Decision at 27.

Even if we were to agree that a union could utilize the procedures encompassed by § 7111 to become recognized as a kind of hybrid exclusive representative having less than the full rights accorded by chapter 71 of title 5, we find that the Under Secretary's exercise of his sole and exclusive discretion precludes such an outcome in this case. As already noted, supra, the term "collective bargaining" addresses the full array of representational activities by an exclusive representative. As such, we find no support for the argument that the Under Secretary meant to permit the creation or recognition of an exclusive representative having less than the full rights accorded to exclusive representatives under chapter 71 of title 5. Rather, based on the above, the Under Secretary's action precludes the recognition of an exclusive representative for any and all representational activity permitted by chapter 71 of title 5.

Finally, Congress has provided unions with something less than the full rights accorded to exclusive representatives under § 7111, but has chosen to provide such rights in only two instances: national consultation rights under § 7113(a), provided there is not an exclusive representative on an agency-wide basis; and dues withholding under § 7115(c)(1), which permits a union, where there is no exclusive representative already in place, to negotiate with an agency over dues withholding procedures. Absent any expression of Congressional intent to create something less than full and exclusive recognition for screener personnel under § 7111, we have no statutory authority to do so at the request of a Petitioner willing to accept something less than the full range of collective bargaining provided under the Statute.

2. The Legislative History Indicates That TSA Screeners Have Collective Bargaining Rights Only at the Discretion of
   the Under Secretary [n6]

The Petitioner also contends that the legislative history of the ATSA indicates that Congress intended for TSA security screeners to enjoy collective bargaining rights. However, upon review we find that the Petitioner's argument is unpersuasive.

In this regard, we have looked at the legislative history provided by the Petitioner. We note that when read in context, the cited language expresses the perception that private security screeners had not done an adequate job in providing security rather than implying that under the ATSA screeners would be unequivocally allowed to elect an exclusive representative. Moreover, the language cited by the Petitioner also indicates that at least one legislator acknowledged that under the ATSA the Under Secretary would retain discretion over the right to engage in collective bargaining. In this respect, the Petitioner cites to the statement of Representative Schakowsky who, in talking about the screener personnel, stated:

We do not want those critical workers to be given second-class status when it comes to employee benefits and rights. We must attract the most qualified people possible to fulfill the role of protecting the flying public. There should be no question that they deserve the same treatment as their fellow federal employees. (Cong. Rec. H8313 [daily ed. Nov. 16, 2001] (statement of Rep. Schakowsky. [ v59 p430 ]

However, what the Petitioner fails to mention is that immediately prior to this statement, Representative Schakowsky stated:

However, I continue to be concerned that we have left the Secretary of Transportation with a great deal of discretion as to whether those new public employees will enjoy the same employment benefits and protections as other federal workers. While we agree that these federal law enforcement employees will not have the right to strike, it is my understanding that the Secretary is given the authority to determine whether they can join a union; participate in the Federal Employees Health Benefit Plan and retirement options; and be covered by non- discrimination, health and safety, and whistleblower laws. (emphasis added).

Id. See also RD's Decision at 11.

Additionally, unlike other areas in which the House Conference Committee expressed a view as to how the Under Secretary should exercise his discretion (H.R. Conf. Rep. No. 107-296, at 64 (2001)), no expression was made in the report about labor relations. Rather, the House Conference Committee stated "the Secretary should also ensure that screeners have access to Federal health, life insurance, and retirement benefits, as well as workers' compensation benefits. The Committee believes that screening personnel must also be given whistleblower protections so that screeners may report security conditions without fear of reprisal." Id.

Accordingly, after reviewing the RD's decision and the legislative history provided by the Petitioner, we conclude that the legislative history of the ATSA does not undermine the plain language of 49 U.S.C. § 44935, Note, which leaves unfettered discretion to the Under Secretary to determine the terms and conditions of employment for screener personnel in the TSA.

3. The Petitioner's Constitutional Issues Are Not Properly Before the Authority

In its final argument, the Petitioner claims that the ATSA as interpreted by the RD would deny employees both their First Amendment right to assembly, free speech and association and their Fifth Amendment right to equal protection. Application at 11-12. For the following reason, we will not consider the Petitioner's argument.

The Constitutional issues raised by the Petitioner are claimed to be based solely on the RD's alleged unconstitutional interpretation of the ATSA. However, we note that the RD's interpretation is consistent with the same interpretation offered by the TSA in its Agency Response to Election Petition. See Agency Response to Election Petition at 6-8 (January 9, 2003). In its subsequent briefs, the Petitioner failed to raise these Constitutional claims to the RD even though the Agency's submissions should have placed it on notice that the RD certainly could determine that the ATSA left the Under Secretary with unfettered discretion to determine the terms and conditions of employment of screener personnel.

As "an application may not raise any issue or rely on any facts not timely presented to the . . . Regional Director" the Authority is precluded from reviewing these Constitutional issues. 5 C.F.R. § 2422.31(b). See also 5 C.F.R. § 2429.5 which states that the Authority will not consider any issue which was not presented in the proceedings before the Regional Director; See, e.g., Soc. Sec. Admin. Headquarters, Balt., Md., 57 FLRA 459 (2001) (Authority would not consider union's constitutional due process argument under § 2429.5 where there was no evidence that it had been raised before the arbitrator); United States Dep't of Def. Educ. Activity, Arlington, Va., 56 FLRA 985 (2000) (union's claim that an award was contrary to law, including a claim that the award violated the Appropriations Clause of the United States Constitution, Article 1, Section 9, Clause 7, was barred by § 2429.5 because they should have been raised before the arbitrator). Accordingly, the Authority will not address the Petitioner's Constitutional claims.

V. Order

For the reasons stated above, we affirm the RD's Decision and Order dismissing the petitions.

File 1: Authority's Decision in 59 FLRA No.
63

File 2: Opinion of Member Pope

Footnote # 1 for
59 FLRA No. 63

• Authority's Decision

Member Pope's separate opinion, dissenting in part, is set forth at the end of this decision.

Footnote # 2 for
59 FLRA No. 63

• Authority's Decision

Pub. L. 107-71, Title I, § 111(d), November 19, 2001, 115 Stat. 620 was codified as 49 U.S.C. § 44935, Note.

Footnote # 3 for
59 FLRA No. 63

• Authority's Decision

The Petitioner notes that under the "traditional equal protection test" the "[F]ederal government is given wide latitude to enact legislation affecting a classification which is presumed valid and will be upheld if it is found it is rationally related to a proper constitutionally permissive interest . . . [as long as] the legislation [is not] invidious, wholly arbitrary or capricious." Application at 12 (citing Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911); United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980)).

Footnote # 4 for
59 FLRA No. 63

• Authority's Decision

The Agency also "incorporates by reference all of the arguments and authorities contained in its submissions to the Regional Director[.]" Opposition at 2. While the Authority has reviewed these arguments, these arguments will not be set forth separately.

Footnote # 5 for
59 FLRA No. 63

• Authority's Decision

Section 2422.31(c) specifically states:

The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:

(1) The decision raises an issue for which there is an absence of precedent;

(2) Established law or policy warrants reconsideration; or

(3) There is a genuine issue over whether the Regional Director has:

(i) Failed to apply established law;

(ii) Committed a prejudicial procedural error;

(iii) Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 6 for
59 FLRA No. 63

• Authority's Decision

Based on the above analysis we find that the ATSA is not ambiguous in granting the Under Secretary unfettered discretion over terms and conditions of employment of screener personnel. However, we have determined that it is nonetheless prudent to review the legislative history of the ATSA in resolving this matter. See e.g., Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 n.29 (1978) ("When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to legislative history as a guide to its meaning.").

Member Pope's separate opinion (FLRA public release)

[ v59 p431 ]

Opinion of Member Carol Waller Pope, dissenting in part:

I would grant the application for review on the ground that the RD misapplied Authority precedent. In this regard, I disagree with the majority's conclusion that the RD properly dismissed the petitions. [n1]

The majority finds that 49 U.S.C. § 44935 Note (§ 44935) grants the head of the Agency the discretion to determine whether employees may organize to select an exclusive representative under the Statute. This conclusion is not supported by either the wording or legislative history of § 44935. It is also contrary to the terms of the Statute. In reaching its conclusion, the majority confuses two very different matters: the right to engage in/scope of collective bargaining and the right to exclusive representation. In the process, it runs roughshod over significant employee rights, implying that these rights are insignificant.

Section 7111(a) of the Statute provides, as relevant here, that "[a]n agency shall accord exclusive recognition to a labor organization if the organization has been selected as the representative . . . by a majority of the employees in an appropriate unit . . . ." In order for employees to be included in an appropriate unit for labor organization representation, they must be employed in an "agency." Phoenix Area Indian Health Serv., Sacaton Serv. Unit, Hu Hu Kam Mem'l Hosp., Sacaton, Ariz., 53 FLRA 1200, 1219 (1998) (Hu Hu Kam). The Statute defines the term "agency" as "an Executive agency" and the term "labor organization" as "an organization . . . which has as a purpose the dealing with an agency concerning grievances and conditions of employment[.]" 5 U.S.C. § 7103(a)(3) and (a)(4).

The RD found, and there is no dispute, that the Agency is "within an Executive Branch department and authorized . . . to employ personnel to carry out its mission." RD Decision at 20. There also is no dispute that the Petitioner qualifies as a "labor organization" under the Statute. Further, the statute setting up the Agency specifically incorporates the personnel system of the Federal Aviation Administration, which explicitly requires that agency to comply with the Statute. See 49 U.S.C. §§ 114(m)(1), 40122(a)(1), 40122(g)(2)(C). Nevertheless, the majority finds that a representation election may not be held in this case based on § 44935, which permits the Agency to "employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service" of the employees encompassed by the petition in this case "[n]otwithstanding any other provision of law[.]"

The majority does not explain why it interprets § 44935 to permit the Agency head to eliminate employees' right to organize under the Statute. Moreover, even a casual reading of § 44935 demonstrates that it relates to the determinations of employee working conditions -- hiring, appointment, discipline, and compensation -- not a determination whether the employees are permitted to organize under the Statute. Although that provision may grant the Agency discretion over the subjects contained in it, it does not grant discretion to add subjects that Congress left out. That is what the majority does here.

That the majority is rewriting § 44935 to suit its outcome is evident by comparing similar statutory provisions that the Authority and the courts previously have construed. In this regard, Congress has enacted a variety of provisions that grant agencies discretion to determine various conditions of employment. See, e.g., Colo. Nurses Ass'n v. FLRA, 851 F.2d 1486, 1488 (D.C. Cir. 1988) (Veterans Administration Title 38 employees); N.J. Air Nat'l Guard v. FLRA, 677 F.2d 276 (3d Cir. 1982), cert denied, 459 U.S. 988 (National Guard technicians); United States Dep't of the Interior, Bureau of Indian Affairs, S.W. Indian Polytechnic Inst., Albuquerque, N.M., 58 FLRA 246, 248-49 (2002) (employees of Indian college) (BIA); Hu Hu Kam, 53 FLRA at 1219 (employees on long term special purpose assignment); AFGE, Local 3295, 47 FLRA 884, 894 (1993), enforced sub nom. AFGE, Local 3295 v. FLRA, 46 F.3d 73 (D.C. Cir. 1995) (Office of Thrift Supervision employees) (OTS). Where such provisions are interpreted to grant [ v59 p432 ] an agency sole and exclusive discretion, they may significantly affect an exclusive representative's right to engage in, or the scope of, collective bargaining. See BIA, 58 FLRA at 248-49; OTS, 47 FLRA at 894. [n2]

Congress also has enacted a variety of provisions that explicitly deny employees' rights to organize. For example, the Statute itself provides at least three avenues for the exclusion of employees from its coverage. First, § § 7103(a)(3) excludes specific agencies from the definition of the term "agency." Second, § 7103(b)(1) permits the President to issue an executive order excluding "any agency or subdivision thereof" from coverage for a variety of reasons, including national security. Third, § 7112(b) provides seven categories of employees who cannot be included in an appropriate unit. In addition, Congress has granted at least one agency the unreviewable discretion to exempt employees from coverage under the Statute. See NIMA, 57 FLRA at 838 n.4 (citing 10 U.S.C. § 461(c)(2).

The fact that Congress has, over the years, enacted some provisions that provide agency heads discretion to take subjects off the bargaining table and enacted other provisions that deny (or permit agencies to deny) employees the right to organize under the Statute leads to the obvious conclusion that there is a difference between the two. It also is obvious, at least to me, that determining which category a particular statutory provision falls into necessitates examination of the provision's wording. Put differently, the words matter. The majority states, in this connection, that Congress need not use "language similar" to that in 10 U.S.C. § 461 to exclude employees from coverage under the Statute. Majority Opinion at 14. The majority does not, however, explain how Congress can achieve this result by using no language at all expressing such intent. There is no basis for concluding that Congress meant one thing when it said another. [n3]

In addition to ignoring the wording of § 44935, the majority also conflates the matter of the scope of bargaining with the matter of coverage under the Statute, asserting that by "seeking to be formally recognized as the exclusive representative of these employees[,]" the Petitioner "attempt[s] to override" the Agency's determination that it "will not bargain over terms and conditions of employment." Id. at 14. This is nonsense. Whatever the Petitioner's desire to engage in collective bargaining -- and noting that nothing in § 44935 prohibits the agency from engaging in bargaining [n4] -- the purpose of an election petition is to become an exclusive representative.

In this regard, I agree completely with the majority that collective bargaining is an important, but far from the only, right granted exclusive representatives under the Statute. See Majority Opinion at 14-16. What the majority fails to grasp, however, is the significance of this. The fact that there are important rights granted under the Statute to exclusive representatives -- separate and apart from the right to engage in collective bargaining [n5] - means that even if the majority is correct that § 44935 grants the Agency broad discretion to take virtually all conditions of employment off the bargaining table (an issue I find no reason to address), there is no statutory basis for depriving employees of the right to select an exclusive representative to exercise other rights. [n6] The majority concedes, in this regard, that exclusive representation granted under § 7111 involves much more than just a "limited right to engage only in the collective bargaining process." Majority Opinion at 15. [ v59 p433 ] The majority misses the point, however, by concluding that the right to organize under the Statute is only available to employees who have every other right granted under the Statute available to them. [n7] If that were the case, then the numerous Federal employees who work under statutes that limit their bargaining rights, described above, would not be permitted to choose an exclusive representative.

In sum, I do not believe that the Statute requires a determination that an agency must engage in collective bargaining with a union prior to permitting the employees to organize a union. [n8] Accordingly, I would find that the petitions should be processed, reverse the RD's finding to the contrary, and remand for processing of the petitions. [n9]

File 1: Authority's Decision in 59 FLRA No. 63

File 2: Opinion of Member Pope

Footnote # 1 for
59 FLRA No. 63

• Opinion of Member Pope

The majority ignores the Regional Director's finding that the petition presented an issue of Authority jurisdiction. RD Decision at 3, 19. In my view, it is important to reiterate that, no matter how the Authority construes § 44935, nothing in that statute deprives the Authority of jurisdiction here. In the rare situation where Congress has intended to permit another agency to deprive the Authority of jurisdiction over a matter, it has made that intention explicit. See, e.g., Wis. Fed'n of Nurses & Health Prof'ls, Veterans Admin. Staff Nurses Council, Local 5032, 47 FLRA 910, 913-14 (1993) (Authority lacked jurisdiction to review a VA Secretary determination because 38 U.S.C. § 7422(d) provides that the determination "may not be reviewed by any other agency"). See also United States Dep't. of Defense, National Imagery and Mapping Agency, St. Louis, Mo., 57 FLRA 837, 838 n.4 (2002) (NIMA) (determination by the Director of NIMA under 10 U.S.C. § 461(c)(2) to terminate bargaining unit coverage unreviewable by the FLRA).

Footnote # 2 for
59 FLRA No. 63

• Opinion of Member Pope

The majority is, thus, incorrect in stating that the only examples of unions having "less than the full rights accorded to exclusive representatives" are national consultation rights under § 7113(a) and dues withholding under § 7115(c)(1). Majority Opinion at 17. The Federal labor-management relations program is replete with examples of employees whose collective bargaining rights are limited by the operation of other statutes.

Footnote # 3 for
59 FLRA No. 63

• Opinion of Member Pope

The limited legislative history relied on by the majority does not support its construction of § 44935. As the majority notes, the conference report accompanying § 44935 encouraged the Agency to exercise its discretion by providing certain benefits and protections, without mentioning the right to organize under the Statute. See H.R. Conf. Rep. No. 107-296 at 64. While I find no reason to imbue total silence of the conference committee on the subject of union organizing with great significance, this silence could just as easily support an inference contrary to that of the majority. That is, the committee could have omitted reference to this issue because it understood that employees would have the right to organize under the Statute by virtue of their inclusion in the FAA personnel system. Representative Schakowsky's comments do not support a contrary conclusion. As the Supreme Court has explained, it "does not usually accord much weight to the statements of a bill's opponents. `[T]he fears and doubts of the opposition are no authoritative guide to the construction of legislation.'" Shell Oil Co., 488 U.S. 19, 29, 109 S. Ct. 278, 283 (1988) (quoting Gulf Offshore Co., 453 U.S. 473, 483, 101 S. Ct. 2870, 2878 (1981)).

Footnote # 4 for
59 FLRA No. 63

• Opinion of Member Pope

Unlike agencies specifically exempted from coverage of the Statute in § 7103(a)(3), such as the FBI, the Agency may voluntarily elect to engage in collective bargaining. See, e.g., Colo. Nurses Ass'n v. FLRA, 851 F.2d 1486, 1491 (D.C. Cir. 1988).

Footnote # 5 for
59 FLRA No. 63

• Opinion of Member Pope

For example, § 7101(a)(1) sets forth Congress' recognition and protection of not only employees' right to bargain collectively, but also employees' separate right to "participate through labor organizations of their own choosing in decisions which affect them[.]" Consistent with this, § 7102(1) sets out separate employee rights to (1) "act for" and "present the views of the labor organization" to "heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities," and (2) "engage in collective bargaining." Similarly, § 7114(a) provides the right to "act for" employees and a separate right to "negotiate collective bargaining agreements." Section 7114 also provides for the right to be represented in formal discussions and in certain examinations of employees. See, e.g., United States Dep't of Energy, Rocky Flats Field Office, Golden, Colo., 57 FLRA 754, 755 (2002) (formal discussion); Fed. Bureau of Prisons, Office of Internal Affairs, Wash., D.C., 54 FLRA 1502, 1509 (1998) (certain examinations). These additional rights are not an aspect of collective bargaining. See NLRB v. Weingarten, 420 U.S. 251, 259 (1975) (representation at Weingarten interview not collective bargaining). Likewise, the term "grievance" is defined broadly in § 7103(a)(9) of the Statute and would encompass whatever dispute resolution processes are available to employees, not only a negotiated grievance procedure. See Dep't of the Air Force v. FLRA, 316 F.3d 280, 285-86 (D.C. Cir. 2003).

Footnote # 6 for
59 FLRA No. 63

• Opinion of Member Pope

Indeed, the Agency head appears to acknowledge this. In the January 8, 2003 memorandum, the Agency head states only that employees may not be "represented for the purpose of engaging in [collective] bargaining[.]" The Agency head makes no statement that employees may not be represented for other purposes. Nevertheless, consistent with the wording of § 44935, I believe that the Agency head acted beyond his authority under that section in determining that employees may not organize under the Statute.

Footnote # 7 for
59 FLRA No. 63

• Opinion of Member Pope

The majority does not explicitly rely on § 7111(b)(1)(A), cited by the Regional Director, which provides for the filing of an election petition with the Authority alleging "that 30 percent of the employees in the appropriate unit wish to be represented for the purpose of collective bargaining by an exclusive representative[.]" Read in the context of the Statute as a whole, I believe the phrase "the purpose of collective bargaining" in § 7111(b)(1)(A) is an example of the functions of an exclusive representative, not a limitation on the situations in which an election may be held. In any event, as noted above, nothing in the ATSA prohibits the Agency from bargaining with an exclusive representative. As such, employees are free to express their desire to bargain, even if the Agency has decided not to bargain at this time.

Footnote # 8 for
59 FLRA No. 63

• Opinion of Member Pope

As such, I would not address the Union's Constitutionalarguments

Footnote # 9 for
59 FLRA No. 63

• Opinion of Member Pope

Among the issues that would remain to be decided prior to ordering an election are the Agency's claims that the screeners should be excluded from any appropriate bargaining unit because they are engaged in security work that directly affects the national security under section 7112(b)(6) of the Statute and that particular petitioned-for units are not appropriate.