By Bob Gilson
Last week I was publicly called the "dumbest person on the internet" apparently for writing that the TSA director may have committed an unfair labor practice in meeting with AFGE during the pendency of a case involving recognition of the TSA workforce.
I must admit that, while engaged in representing agencies in bargaining, hearings or other dealings, I was accused of many things, but being the "most" of anything was rarely one of them. The guy who said it may be right about me generally but not specifically if he’s basing his opinion on the TSA case article alone.
The State of the TSA recognition Process
First, let’s understand that what’s going on in the TSA situation is complicated. Both AFGE and NTEU, according to the Federal Labor Relations Authority (FLRA) Regional Director’s decision, filed Petitions seeking to represent certain TSA employees.
Each petition was accompanied by a 30% Showing of Interest. That means that 30% of the people in the Bargaining Unit the unions were seeking to represent actually signed something saying they wanted a union to represent them. Employees are not constrained and therefore, some might have signed both petitions. It is unusual for two unions in an election to file a petition that 30% of prospective unit members sign. By the way, a bargaining unit is the jurisdiction (grouping of positions) within an Agency over which a union may exercise statutory rights if elected to represent the employees within it. A unit must be found to be appropriate by the FLRA. Sometimes the parties agree on the unit composition and the FLRA will approve. Sometimes the composition of the unit and its scope are the cause of battles between the parties at a hearing conducted by a FLRA Regional Director’s staff.
The petitions in this case are seeking to represent the same proposed bargaining unit, all TSA screeners nationwide. When he got these petitions, Regional Director Peter Sutton issued a Show Cause Order telling those involved that they had to get past the prior decision (59 FLRA 423 (2003)) in order for him to accept their petitions and move the process along. The responses apparently didn’t cut it and so the Regional Director dismissed the petitions. The unions are in the process of appealing this decision. Is everybody with me so far?
So What Now?
The unions have appealed the dismissal of the petitions to the FLRA which will decide whether or not to tell the Regional Director to accept them for processing. So everything is on hold until then.
So What If FLRA Reverses the Regional Director?
As I have written, I think FLRA will reverse the regional director. If so, the petitions are returned to the RD and the election process proceeds. Generally, the RD will order the Agency to post a notice that a petition (or in this case two) has been filed and schedule a hearing to resolve any disputes over the scope or composition of the bargaining unit. This process, in itself, can be long and painful in that there are a number of exclusions from a bargaining unit (supervisor, management official, etc.) that may be fought over. In TSA, for example, the folks you see with two stripes on their shoulder boards are Lead Transportation Security Officers. Whether or not the agency will want them excluded is yet to be seen or fought about, perhaps.
What If Other Unions Want To Play
Once a petition with a 30% showing of interest is filed, another union or even a dozen of them can file as an Intervenor in the election if they get 10% of employees to sign on. Again, a single employee could sign all the petitions under FLRA’s rules. Nobody can predict which or how many unions may want to get their names on the ballot. What’s interesting is that the winner must receive a majority of the valid ballots cast and that the choice of no union must appear on the ballot. Also interesting is that in the election, if there’s no clear majority, only one runoff election may be held. So this whole show may be far from over. While FLRA’s regs are a little fuzzy, they appear to hold that you can’t intervene with 10% unless somebody opened the door with 30%. That may be why we may not see interest from other players until or unless FLRA accepts the initial petitions with 30%. Still with me?
There is a school of thought that even if FLRA orders an election and a union wins, TSA won’t have to bargain with the winner because of it’s enabling legislation. TSA’s law was found, in the earlier case supported by the court, to release it from the bargaining obligations of Federal labor law.
TSA Could Use Some Good Labor Relations Specialists
Since TSA has never had a union, it didn’t have to recruit labor relations staff. From the above, it’s pretty obvious why John Gage, National President of AFGE, wants to exclude Agency labor relations practitioners from participation in Agency forums under the President’s Order (and be rid of them generally).
Labor relations is a complicated business and uninformed managers take great risks playing in the business without good advice based on a knowledge of both an Agency’s interests and the law. A friend of mine likes to say that anyone can get by in shallow water, but you better know what you’re doing if you go deeper. Federal unions have a history of muddying the water whether deep or shallow.
Dumbest Guy’s Final Thoughts
Perhaps it’s a little clearer why I suggested that the TSA’s Director be cautious in dealing with Federal unions. These unions have filed in excess of 150,000 unfair labor practice allegations since the statute’s enactment, but don’t listen to the dumbest guy around, find a good labor relations specialist and ask him or her. As Bill Cosby put it, "A word to the wise ain't necessary, it's the stupid ones who need the advice."
As always, my views and mine alone. Please correct the above if I got the process wrong.