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This is the first segment of AFGE’s 4-part series: The Road to Title 5: TSA Officers’ Fight for Dignity on the Job Changed TSA
The Transportation Security Administration (TSA) turns 20 on Nov. 19, 2021. AFGE members played a major role in bringing workplace rights to TSA and shaping the agency’s personnel policies, and we are proud to have helped improve TSA officers’ working conditions and in so doing, making air travel safer for the American people.
Created in response to the 9/11 terrorist attacks during the George W. Bush administration, the young agency was first put under the Department of Transportation and then moved to another newly created department, the Department of Homeland Security (DHS).
As the U.S. was fighting the war on terror here at home and abroad, Transportation Security Officers (TSOs) shouldered the enormous responsibility of protecting air travelers and keeping our skies safe.
Tell Congress to Support Title 5 Rights for TSOsDespite this important mission, TSA failed to provide decent working conditions to the very workforce that kept America safe.
It was not acceptable, for example, that TSA retaliated against TSOs for filing workers compensation claims after being injured on the job. When TSOs got sick from wearing uniforms laden with formaldehyde, the agency refused to replace them. TSA had officers conduct performance tests of officers on the machines that they did not actually use and fired them for failing these tests.
AFGE recognized this problem from the very beginning, and we tried to change it.
We fought for changes despite enormous challenges and resistance from anti-worker administration officials and politicians. Every improvement in working conditions TSOs have today is the direct result of our union and TSO activists’ hard work, perseverance, and an unorthodox approach to winning workplace rights.
Looking back, we are proud to say that TSOs’ working conditions have enormously improved over the past 20 years.
In 2003, AFGE had just one local with 13 dues-paying members. Today, we have 39 TSA locals with nearly 19,000 dues-paying members and growing.
Our union’s presence empowered TSOs to demand the rights they deserve. TSOs have heroically fought for dignity on the job, and in so doing, they changed TSA forever.
This is our story.
Mission Impossible?
John Gavello was a TSA officer at Oakland International Airport. He was fired in 2004 after posting union materials in the breakroom, talking to a coworker about the union, and seeking legal advice from an AFGE attorney.
Because TSOs had no access to the Federal Labor Relations Authority (FLRA) to resolve union-related issues, AFGE took TSA to court for violating his First Amendment rights of free speech and association.
True to its anti-worker stance, TSA argued that the court had no jurisdiction over TSOs’ constitutional claims because Congress excluded TSOs from civil service job protections when the agency was created in 2001. The court sided with the agency. It also ruled that AFGE had no standing to sue the government on behalf of itself or TSOs.
The lower court’s ruling did not stop AFGE from trying to prove that it was not the intent of Congress to deprive TSOs of constitutional rights. We filed an appeal, and the appeals court agreed with us. Judge William A. Fletcher wrote on behalf of a three-judge appeals court panel that, "If Congress wishes to deny federal employees the ability to redress alleged constitutional violations, it must state its intention clearly." He added that “the Supreme Court has squarely held that a union may have standing to challenge governmental interference with organizing activities.”
Even though we eventually settled, it was clear that TSOs and AFGE had the right to sue the government for violations of free speech and association. The ruling was a big blow to the Bush administration and TSA, which had held a position that it had free rein to discriminate and violate workers’ constitutional rights.
On the other side of the country in New York, a baggage screener at John F. Kennedy International Airport was terminated after failing a re-certification test for passenger screening techniques. AFGE filed an appeal with TSA’s internal Disciplinary Review Board (DRB), arguing that the worker, who had constantly scored high job performance reviews, was tested on work she was not performing.
It took the board five months to come to a decision that the TSO should have been returned to passenger screening duties in preparation for her re-certification test. The board reinstated her to the position with back pay. The officer, however, found another job that treated her better than TSA. The agency lost a capable worker it spent a lot of money hiring and training.
At Washington Dulles Airport, a disabled TSO was arbitrarily transferred from a teaching position to a screening position. The TSO’s disability required him to use a cane and limited his ability to walk and stand. He did a great job as a TSA Approved Instructor, receiving an “exceeds” rating on his annual performance review. Despite this performance, TSA transferred him to a screening position which required up to eight hours of standing. The TSO had no choice but to request disability retirement. AFGE filed a complaint with the Equal Employment Opportunity Commission (EEOC) on his behalf, alleging discrimination based on disability.
The EEOC in 2009 ruled in our favor and awarded the TSO two years of back pay and $150,000 in damages for emotional pain and suffering. The judge also ordered TSA to train its management and HR team at Dulles on disability rights and notify employees that they had the right to be free of discrimination.
The ruling was a stinging rebuke to TSA, which had always argued that the Rehabilitation Act – a law that prohibits disability discrimination and requires employers to provide a reasonable accommodation to disabled employees, did not apply to TSOs.
Stories like these have emerged all over the country especially during the early years of TSA, illustrating how AFGE has played a crucial role in shaping TSA personnel policy and improving TSOs’ working conditions, which in turn makes the flying public safer because TSOs can focus on their jobs instead of having to constantly watch their backs.
But it has not been a cake walk trying to improve things at TSA. In fact, the Bush administration was downright hostile to unions and the idea of employees having a voice at work. It not only prohibited collective bargaining at TSA but also fought efforts to make TSA a better place to work for its own employees – the workforce that keeps America safe.
A novel approach to organizing
As the Gavello case above illustrated, AFGE had to be creative in our approach to organizing and bringing workplace rights to TSA.
We, for example, tested a theory that the union could represent workers outside the collective bargaining framework and despite the fact that the employee had not yet joined AFGE. Gavello, a probationary TSO, was not a member.
Instead of waiting for the administration to grant TSOs collective bargaining rights before organizing them, we recruited members as a way to gradually push for these rights.
When the FLRA rejected our petitions to hold a union election at TSA in the early years, we changed our strategy and later used the rejections to build a nationwide unit as opposed to the by-location approach rejected by the FLRA.
But one of the most important events in our campaign was when we decided to file another union election petition with the FLRA after recognizing that circumstances had changed in our favor – by then we had established a long record of representing TSOs in all types of grievances and over 13,000 TSOs had joined the union.
To our delight, the FLRA agreed with our argument and granted a union election.
Shortly thereafter, then TSA administrator John Pistole under the Obama administration granted limited bargaining rights to TSOs, which then allowed AFGE to make even more impact on TSOs’ working conditions on a wide range of issues such as pay, performance evaluation, shift bidding, parking, and uniform allowance.
In Pistole’s determination, he cited the FLRA’s union election decision and the 13,000 TSOs who were already union members.
We accomplished what people at the time thought was not possible.
But throughout the years, it was rank-and-file TSOs that kept our fight going. Their sacrifice and courage, especially during the early days when they could be fired for talking to their coworkers about joining a union, were astounding. They challenged the status quo and risked their own livelihood for a better life for themselves and their families.
When the agency first came into being, TSOs were completely subject to the whims of their managers, who could discipline TSOs for everything and nothing. Now, TSOs have a union contract that protects them against that kind of mistreatment and more.
The Biden administration’s announcement in June that it has directed TSA to give TSOs a pay boost and more rights consistent with Title 5 is the direct result of TSOs and AFGE’s hard work and creativity.
TSOs’ courage and perseverance inspired us to keep going, and we will not rest until we reach the goal of winning permanent Title 5 rights.
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