The law that made the screeners federal employees "granted unfettered discretion to the (Transportation Security Administration) to determine the terms and conditions of employment," U.S. District Judge Claudia Wilken said in a Dec. 2 ruling that was made public Wednesday.
She said the law deprived screeners of the right held by other federal civil service employees to take workplace grievances to a government review board, whose decisions can be appealed in court. Under past court rulings, employees have no right to take their complaints to court -- except civil rights claims in such areas as race and sex discrimination -- even if they have no legal grievance procedures.
In interpreting the law, the judge relied on a ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco two years before the Sept. 11, 2001, terrorist attacks that gave rise to the law. The court dismissed a suit by a civil service employee who said she was fired for testifying about her employer and could not file a grievance, ruling that Congress was better equipped than the courts to weigh employees' constitutional rights against the need for an efficient federal workforce, Wilken said.
Mary Dryovage, lawyer for the fired employee, John Gavello, and his union, the American Federation of Government Employees, said Wednesday that they will appeal.
The ruling would mean that "the screeners have fewer rights than Guantanamo detainees," Dryovage said. She contended that Gavello has the right, under U.S. and international law, to join a union, even if the law also allows the Transportation Security Administration to refuse to negotiate with unions as employee representatives.
"TSA employees have no freedom of speech (or) association" under Wilken's ruling, said Gavello. "All I want is to have my case heard in a court of law."
In the suit, filed in April, Gavello said the TSA suspended him for two weeks in November 2003 after he posted union material in a workplace break area and talked to a coworker about the union.
He was fired in February after sending a union lawyer a copy of a grievance letter. The agency said the letter, which mentioned baggage inspection procedures, was a breach of security.
The suit sought his reinstatement, with back pay.