TSA Collective Bargaining Terminated: What Does It Mean for Workers and Travelers?

On March 7, the Associated Press reported that the Department of Homeland Security was terminating the collective bargaining agreement with frontline TSA employees.

The American Federation of Government Employees (AFGE) represents the TSA workers and has tangled with DHS in court before. The union announced it would fight the move. The agreement was just signed in May by TSA’s then-administrator. Current administration officials reportedly said “poor performers were being allowed to stay on the job and that the agreement was hindering the ability of the organization to safeguard our transportation systems and keep Americans safe.”

AFGE responded that:

“This is merely a pretext for attacking the rights of regular working Americans across the country because they happen to belong to a union.”

Some 47,000 Transportation Security Officers show up at more than 400 airports across the country every single day to make sure the skies are safe for air travel. Many of them are veterans who went from serving their country in the armed forces to wearing a second uniform protecting the homeland and ensuring another terrorist attack like Sept. 11 never happens again.

For background, the other principal union representing federal employees, the National Treasury Employees Union (NTEU), won a legal challenge against the Department of Homeland Security in 2006 when DHS tried to limit the application of collective bargaining rights provided for in the Homeland Security Act of 2002. The case was decided by the United States Court of Appeals for the District of Columbia Circuit in National Treasury Employees Union v. Chertoff, 452 F.3d 839 (2006).

The statute creating DHS specifically provided for a human resources management system that would:

“Ensure that employees may organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them, subject to any exclusion from coverage or limitation on negotiability established by law.”

The Court’s decision was clear:

“We hold that the regulations fail in two important respects to ‘ensure that employees may . . . bargain collectively,’ as the HSA requires. First, we agree with the District Court that the Department’s attempt to reserve to itself the right to unilaterally abrogate lawfully negotiated and executed agreements is plainly unlawful. If the Department could unilaterally abrogate lawful contracts, this would nullify the Act’s specific guarantee of collective bargaining rights, because the agency cannot ‘ensure’ collective bargaining without affording employees the right to negotiate binding agreements.”

“Second, we hold that the Final Rule violates the Act insofar as it limits the scope of bargaining to employee-specific personnel matters. The regulations effectively eliminate all meaningful bargaining over fundamental working conditions (including even negotiations over procedural protections), thereby committing the bulk of decisions concerning conditions of employment to the Department’s exclusive discretion. In no sense can such a limited scope of bargaining be viewed as consistent with the Act’s mandate that DHS ‘ensure’ collective bargaining rights for its employees.”

The Court drove that point home later in the opinion:

“The most extraordinary feature of the Final Rule is that it reserves to the Department the right to unilaterally abrogate lawfully negotiated and executed agreements. This is plainly impermissible under the HSA. If the Department could unilaterally abrogate lawful contracts, this would nullify the statute’s specific guarantee of collective bargaining rights, because DHS cannot ‘ensure’ collective bargaining without affording employees the right to negotiate binding agreements. The District Court’s decision on this point is exactly right:

“The Regulations fail because any collective bargaining negotiations pursuant to its terms are illusory: the Secretary retains numerous avenues by which he or she can unilaterally declare contract terms null and void, without prior notice to the unions or employees and without bargaining or recourse.”

The issue now is that the statute creating TSA does not contain the same collective bargaining guarantees that were in the original DHS legislation. The bargaining rights for TSA employees were based on an administrative directive issued under President Obama.

On the other hand, there is an agreement in place, signed on behalf of the government. The Court of Appeals was clear that the government could not be permitted to simply reject valid contracts it had entered, at least in the context of the guarantee of collective bargaining rights in the governing statute.

Thus, the question raised by the latest action to eliminate collective bargaining is likely to be decided in the lawsuit promised by AFGE: whether the federal government can unilaterally reject a contract lawfully entered with the union on behalf of employees when the governing statute contains no explicit guarantee of collective bargaining rights.

While the case moves through the court system, it seems reasonably likely that the government will refuse to honor the provisions of the existing agreement. If so, the effect on the TSA employees and the traveler safety systems they manage can only be speculated upon.