This is the final segment of AFGE’s 4-part series: The Road to Title 5: TSA Officers’ Fight for Dignity on the Job Changed TSA.
The series is dedicated to the brave TSA officers who have fought for what is right, and to AFGE leaders and staff who helped make it happen.
Cathie McQuiston was not really involved in the AFGE TSA organizing campaign. At the time, she was deputy director and staff attorney of the Membership and Organization Department, but her focus was on other organizing issues in the federation.
McQuiston, however, was privy to internal discussion about the direction of the TSA campaign and a significant chance that AFGE might not be able to afford funding the campaign considering its length – 9 years – and the fact that collective bargaining for the Transportation Security Officer workforce was not exactly on the horizon.
This was January 2010, a year after President Barack Obama came into office, and days after his first nominee to be TSA administrator withdrew himself from consideration. Obama had promised bargaining rights for TSOs as a presidential candidate, but a year later, that didn’t happen. Enthusiasm among TSOs began to wane. Morale among the officers and AFGE staff took a hit.
“It was internally bleak,” McQuiston recalled. “It was like doomsday.”
One weekend, McQuiston saw an email from AFGE General Counsel Mark Roth that mentioned the first decision issued by the Federal Labor Relations Authority (FLRA) against AFGE’s union election petition and Carol Pope, a former FLRA member and now its chair. Pope had dissented from the majority opinion that rejected AFGE’s election petition.
McQuiston went back to read Pope’s dissent, which argued that TSOs should be able to vote to elect their union regardless of whether they had collective bargaining because the law that the FLRA administered didn’t require collective bargaining before a union election. The right to elect a union and the right to engage in collective bargaining were two different things.
McQuiston thought there was no reason for Pope to change her opinion, and now that she was chair, why don’t we file another union election petition?
To file a union election petition, you had to show that 30% of the workforce was interested in forming a union. AFGE definitely met that requirement. We had 13,000 TSOs who were dues paying members, membership forms that were being processed, and showing-of-interest cards with names of TSOs who were interested in having a union but not yet members. We also had been representing TSOs in an informal capacity for years.
McQuiston made that recommendation to then M&O Director Sharon Pinnock, now Sukari Pinnock-Fitts, and together they persuaded AFGE leadership to give the FLRA route another try. The plan was to submit the petition to the Washington Regional Office, which would surely dismiss it because of the earlier ruling. We would then proceed to appeal to the three members of the full FLRA chaired by Pope.
AFGE’s annual legislative conference was only weeks away, and so when the organizers arrived in Washington D.C., they worked all weekend to prepare the names of the TSOs to be submitted as part of the petition. They needed to submit the original and two copies of everything. It was a lot of work – the scene was like a war room – but the petition lifted the mood of the campaign.
“It was like a ray of hope,” McQuiston recounted. “We didn’t have any guarantee that it would work, but again we had Carol Pope, the now-chairperson, on the record in writing saying her view, and so now we’re going to present her with the opportunity to carry out what she had said years before.”
On Feb. 22, 2010, McQuiston and seven TSO leaders delivered the petition along with boxes of names at the FLRA Washington Regional Office. The regional office did rule against us quickly, and we proceeded to appeal the decision. The full FLRA in November accepted our petition, paving the way for a union election at TSA.
Cathie McQuiston joined with TSA activists to file FLRA peition. (Feb. 22, 2010)
The FLRA decision gave the campaign a boost it desperately needed.
Keeping hope while facing adversity
Since the beginning of our campaign, AFGE worked closely with several members of Congress to win collective bargaining rights for TSOs. In 2007, we came very close to reaching our goal when both the House and Senate passed their versions of the 9/11 Commission Recommendation bill with a provision granting TSOs collective bargaining rights. AFGE’s lobbyist then was Charity Wilson.
Our intense lobbying efforts were so successful that then President George W. Bush threatened to veto the bill over this pro-TSO provision. Even though the measure was later dropped due to the veto threat, we knew the legislative fix was possible.
The election of Barack Obama at the end of 2008 gave the union and TSOs hope that collective bargaining rights were just around the corner. Shortly after Obama was sworn in as president, then AFGE President John Gage met with Homeland Security Secretary Janet Napolitano in February 2009 to stress the need for bargaining rights at TSA.
A few months later, at AFGE’s request, AFGE and a group of TSO leaders sat down with acting TSA Administrator Gale Rossides and other TSA senior leadership in the first-ever formal labor-management talks.
AFGE and a group of its TSO leaders sit down with TSA senior leadership in the first-ever formal labor-management talks. (July 23, 2009)
AFGE waited impatiently for Obama to nominate someone to be the next TSA administrator. He finally nominated Erroll Southers in September 2009, but Southers withdrew himself from consideration a few months later, taking away with him the hope of a speedy repeal of the Loy memo banning bargaining rights.
At that point, it had been over a year since Obama took office. There was a feeling that collective bargaining rights wouldn’t happen any time soon. AFGE’s campaign hit a snag. Organizers reported waning enthusiasm among TSOs who grew weary and impatient.
That was when McQuiston suggested we file another petition with the FLRA to push for a union election. Another union later filed a union election petition to be on the ballot.
While we were waiting for the FLRA’s decision, Obama in March announced plans to nominate retired major general Robert Harding to be the next TSA administrator. But Harding withdrew his name a few weeks later.
Two months later, Obama nominated FBI Deputy Director John Pistole to lead TSA. To our delight, Pistole was confirmed by the Senate in June 2010. Then AFGE President Gage soon after met with him to make the case for collective bargaining.
The second good news came in November when the full FLRA accepted our petition and greenlighted the union election at TSA. The election would be held early 2011. This would be the first time that the FLRA conducted an election using internet and phone voting.
There was a light at the end of the tunnel.
The Pistole determination
The day that we were waiting for finally arrived shortly after 2011. On Feb. 4, 2011, TSA Administrator Pistole issued a determination granting TSOs their long-overdue collective bargaining rights.
He stated, “Based on this review and after much consideration, I have issued a determination today, using my authority under the law that created TSA, to enable our TSO workforce to vote on whether or not they want to engage in collective bargaining under a unique framework that includes bargaining on limited, non-security issues relating to employment.”
Former TSA Administrator Pistole and current AFGE TSA Council 100 President Hydrick Thomas.
All the hard work that AFGE had put into the campaign for 10 years paid off because in his determination, he also cited the FLRA’s union election decision and the 13,000 TSOs who were already union members. Pistole also rightly concluded that morale of the officers couldn’t be separated from the mission of TSA.
Even though it was limited bargaining, it was still a historic moment and a giant step in the right direction that led to more workplace rights for TSOs and a formal recognition of the union.
AFGE intensified our election campaign. Bill Lyons was the lead organizer. Because of the high turnover at TSA, union members had to work a lot harder to explain the benefits of forming a union to the newly-hired workers again.
The election process took nearly six weeks. When the election result came in April 2011, no union received a majority of the vote. AFGE received 8,369 votes while the other union received 8,095 votes. 3,111 employees voted not to elect union representation. AFGE was disappointed by the low turnout.
We headed to a runoff election between May 23 and June 21, and when the results came in, AFGE received 8,903 votes while the other union received 8,447. AFGE won by 456 votes.
McQuiston said one of the things AFGE did differently before the second election was send a personal letter from then AFGE President Gage to each voter. With such close margins, that letter could have been the difference.
The historic first-ever contract between TSA and AFGE
Now that AFGE had been certified the exclusive representative of the TSA workforce, we set out to form a bargaining team that included several TSOs who would sit across from management at the negotiation table.
Negotiations began in January 2012 and concluded in an agreement following a marathon bargaining session that ended at approximately 3:00 a.m. on Thursday, August 2, 2012. It was one of the proudest moments for AFGE and the bargaining team.
When the TSOs voted to ratify the contract in November 2012, they walked away with so many protections and benefits they didn’t have before, such as:
- The ability to bid shifts based on seniority and trade shifts with their coworkers
- The ability to bid annual leave based on seniority
- Expanded uniform allowances and uniform variations based on the weather
- Fairer performance evaluation practices
The contract made it easier to represent the workers, but it doesn’t mean TSA managers at the local level were receptive of TSOs’ new-found rights. In fact, AFGE had to work hard to enforce the contract as managers were reportedly not even trained on the contract.
During the contract negotiations, AFGE also chartered AFGE TSA Council 100 in April 2012 to help TSA locals represent workers.
We continued to empower TSOs to demand more rights. AFGE, for example, won free parking for TSA officers in 2014 after years of organizing and arbitration. Thanks to pressure from AFGE, TSA changed its methodology for pay increases and performance awards for the 2016 performance cycle.
AFGE had won many cases against TSA, resulting in the agency beginning to take away some of the issues that were initially negotiable. This was another reason why we needed legislation that would give the workforce full bargaining rights.
Then there was the issue of privatization. The law that created TSA provided for five “benchmark” private screening airports — one for each of the five FAA categories of airport — including San Francisco and Kansas City airports, and allowed other airport authorities to try private screening.
Since the beginning, Republican members of Congress had pushed for privatization at more airports, which would bring airport security back to where we were before 9/11. AFGE has successfully fought off all privatization attempts, with the exception of a few tiny airports that tried it for short period of time before going back to TSA screening. Our latest win was in 2018 when we pushed back against Orlando International Airport’s attempt to privatize its screening function.
During the Trump administration, TSA issued a new workplace guideline that took away even more workplace rights from TSA officers. President Trump also threatened to veto legislation that would grant TSA officers full collective bargaining rights under Title 5 and move them under the General Schedule (GS) pay system. The TSOs were disheartened. They had to work without pay for 35 days during a government shutdown while being among the lowest paid federal workers.
The Mayorkas memo
We never lost hope or stopped fighting in the face of adversity. AFGE continued to push for full bargaining rights under Title 5 for the TSO workforce. Before the 2020 election, presidential candidate Joe Biden told AFGE that he would support collective bargaining rights at TSA and legislation that would grant TSOs full Title 5 rights and protections enjoyed by other federal workers.
Following intense AFGE lobbying efforts, the House on Jan. 9, 2007 passes its version of the 9/11 Commission Recommendation bill with a provision that would give TSOs collective bargaining rights. The following day, the authors of the TSO provision, Reps. Bennie Thompson and Nita Lowey, join AFGE in a press conference celebrating the House vote and urging similar action in the Senate. (Jan. 10, 2007)
While AFGE continued to push Congress to pass Title 5 legislation, Department of Homeland Security Secretary Alejandro Mayorkas on June 3, 2021 directed TSA administrator David Pekoske to issue a new determination that would give TSOs more workplace rights consistent with Title 5 and give them a pay boost consistent with the GS system.
Specifically, Mayorkas directed TSA to:
- Open the union contract for renegotiation to reflect the rights and benefits under Chapter 71 of Title 5 of the United States Code, which covers most federal workers.
- Ensure fairness and due process by giving TSOs access to the neutral Merit Systems Protection Board (MSPB) instead of having their cases decided by TSA, as is currently the case. TSOs will also be entitled to appeal MSPB decisions to a Court of Appeals.
- Change the pay system so that it is consistent with the GS locality structure.
- Expand union rights for TSA workers.
Mayorkas has a long history with DHS and is very familiar with the issues at TSA as AFGE has met with him before. This is a major victory for AFGE and TSA officers who have worked for two decades to get the rights they deserve. This wouldn’t have happened without TSOs continuing to lobby for it.
Since 2012, TSOs have had three contracts. We’re in the process of renegotiating a new contract, and AFGE TSA Council 100 President Hydrick Thomas is confident we will get more rights under President Biden.
The final stretch
While we’re still waiting for all this to happen, we still need Congress to pass legislation that would grant Title 5 rights to TSOs and move them under the GS pay system. In order to prevent a future TSA administrator from undoing the progress that Secretary Mayorkas is putting into place, AFGE will continue to work for passage of legislation that would grant TSOs full statutory Title 5 protections.
There are Title 5 bills pending in Congress: the House bill, H.R. 903, was championed by House Homeland Security Committee Chair Bennie Thompson, and the Senate version, S.1856, was introduced by Sen. Brian Schatz.
“I can see the light at the end of the tunnel. We’re going to have Title 5,” Thomas beamed. “But we need to pass HR 903 and S. 1856 so no TSA administrator would be able to take away our rights again. We’re in the middle of a battle right now.”
Missed the 1st, 2nd, and 3rd segments of the series?
Check them out here!
#1: The Road to Title 5: TSA Officers’ Fight for Dignity on the Job Changed TSA
#2: The Road to Title 5: In the Beginning, There Was No Light
#3: The Road to Title 5: ‘There Is More Than One Way up the Mountain’