Why Senator Jim Demint is Right to Challenge TSA Unions

Liberty Chick

On Christmas Day, what was intended to be a far worse terrorist attack was narrowly thwarted, thanks to the prudence and bravery of a handful of airline passengers and flight crew. No one knows yet how Nigerian terror suspect Umar Farouk Abdulmutallab (aka “Farouk1986”) made it past every airport security checkpoint, with bomb materials literally strapped to his groin, and boarded a Northwest Airlines flight ultimately headed for Detroit. Nor does anyone know how the 23-year old made it onto one watch list but not the no-fly list.

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But the now infamous PantyBomber incident has since sparked a heated debate over workers in the Transportation Security Administration that has both Democrats and Republicans fuming, and labor unions chomping at the bit to wage a war of an entirely different kind.

In October, 2008, then candidate Obama wrote a letter to John Gage, President of the American Federation of Government Employees union, promising collective bargaining rights to TSA workers and vowing to make it a priority for his administration.


AFGE-Obama-Letter1

The critical tone of Obama’s letter was directed at lawmakers who’d voted down attempts to legislate mandatory collective bargaining in the 2001 Aviation and Transportation Security Act that created the TSA, and again in 2007 when another mandatory provision was tucked into the Implementing the 9/11 Commission Recommendations Act.

After the news of the incident continued breaking and more details emerged, the focus shifted to the immediate measures TSA would take to increase airport security. This of course opened up broader discussion about longer-term security measures and scrutiny of current TSA procedures, among other issues. But lying just beneath the surface were a lot of raw nerves and an animosity that’s still harbored there. So it wasn’t surprising when the national conversation quickly progressed to the politicizing of the stalled confirmation of Erroll Southers, President Obama’s pick to head the TSA, who coincidentally is now under duress. But a bold Senator Jim Demint (R-SC) spoke out to address the real issue at hand – collective bargaining rights for over 45,000 TSA security officers and the potential impact on homeland security. Others may accuse Demint of partisan politics, but when it comes to standing up for the security of America, Demint is arguing the same point he did in 2007, and others before him did in 2001. Agree with it or not, it is a valid point that some Americans are sincerely concerned about; therefore, it deserves debate and shouldn’t be dismissed as political partisanship.

Let’s clarify what’s up for debate.

First, is the issue of collective bargaining vs. the right to join a union. Many news reports have stated for years that this is about denying workers their right to join a union. That is false. Today, Transportation Security Officers (TSOs), the screeners at the airports, ARE permitted to voluntarily join a union. About 12,000 TSA workers already belong to the American Federation of Government Employees union (AFGE) . They are represented, at their request, by a union representative in grievance procedures and job safety complaints. The TSA will also withhold union dues for an employee, if he so chooses.

The only thing TSOs are not currently permitted to have through their union is a collective bargaining agreement – a written contract that legally binds the TSA to specific wages, hours of work, assigned responsibilities and procedures, and union rules. Many argue that subjecting the TSA to advance negotiating of procedure or duty changes would impair the TSA’s ability to flexibly respond to emergencies and security threats. Last week’s incident with the PantyBomber should be example enough the concern is a valid one, as it prompted the TSA to implement on the spot several security measures not previously in place and to increase screenings, which in turn required flexibility in procedures and in TSA workers.

Leaders of both the AFGE and the National Treasury Employees Union (NTEU) dismissed the idea that collective bargaining would impede upon TSA’s emergency response capabilities.

“Every union contract with federal agencies recognizes management’s right to assign and detail workers as necessary,” Colleen Kelley, President of NTEU, said in a 2007 letter to senators. “Management flexibility in times of crisis is set in statute.”

Secondly, there is the issue of the compensation plan for TSOs. President Obama has called the PASS system “flawed” and said he would consider moving TSOs to the General Schedule (GS) system. TSOs are on a pay-for-performance compensation plan (called PASS at TSA), in which pay increases and incentives are tied to merit and individual work performance (similar to 75% of private sector companies), versus on seniority and length of service. It was established this way intentionally when the TSA was created in 2001. This is intended to motivate more workers to perform to a higher individual standard, which is good for homeland security. TSOs also have a Career Progression Program. There has been a lot of misinformation spread between 2001 and 2009 about the compensation system, when in reality, it is more in line what most businesses have in place today, and has worked well at TSA despite the negative hype from labor unions:

“How does PASS improve security? When you get paid more to do a better job, you do a better job. PASS is targeted to reward excellent performance. That is an incentive to perform at the highest level to which you are capable. PASS rewards the individual performance necessary to achieve TSA’s organizational goals and that increases security.

TSA’s pay-for-performance system is driven by validated data. Its performance metrics are standardized, measurable, observable and almost completely objective. PASS has been adjusted based on feedback from our Officers about what the real job is. Our Officers have told us they want a pay-for-performance system because they know what is at stake: they want to know that their fellow officers are equally competent.”

Testimony of Gale Rossides, Deputy Administrator, TSA

July 22, 2008, Before Senate Committee on Homeland Security and

Governmental Affairs Subcommittee on Oversight of Government Management

Third, is the issue of whether collective bargaining might present challenges to TSA’s ability to efficiently keep America safe. After the 9/11 Commission report was published in 2001 and the panel issued its recommendations, Congress passed the Aviation and Transportation Security Act, which created the TSA the same year. In that legislation, Congress gave the new agency its own authority to decide whether or not to engage in collective bargaining with transportation security officers. In 2007, a new Congress tried to repeal that authority.

While other Department of Homeland Security agencies, such as the Customs and Border Protection, have collective bargaining agreements in place with government unions (AFGE, NTEA), there have been past issues that raise concern for Americans and lawmakers.

“The National Treasury Employees Union (NTEU), for example, brought the Customs and Border Protection (CBP) before an arbitrator after the CBP unilaterally changed policies without collectively negotiating first. The arbitrator found that the CBP should have provided the NTEU with notice and the opportunity to bargain before the CBP made its changes, such as the Port of Houston reassigning officers to the Bush International Airport and the Port of New Orleans implementing a new master schedule.”

Collective Bargaining for Airport Screeners Is Unnecessary and Bad for National Security,

The Heritage Foundation, James Sherk

After additional research and consultation, the TSA therefore concluded at that time that it felt collective bargaining would impair its ability to be flexible and to act immediately in response to security threats, and it opted against it. However, TSOs are permitted to voluntarily join a union, as explained earlier.

  • In 2007, at issue specifically was a provision that was tucked away deep inside the Homeland Security bills. The provision repealed the prior authority of the TSA chief to decide collective bargaining for TSOs at his discretion. In its place was a new provision requiring the TSA to collectively bargain with TSOs. Because of the provision, there was a veto threat; ultimately, it was the House version that passed, which did so without the provision.

  • This past July 2009, the House Homeland Security Committee approved HR 1881, the Transportation Security Workforce Enhancement Act of 2009, which again reintroduced similar language. Sponsored in the House by Representative Nita Lowey (D-NY18), the new bill would mandate collective bargaining rights for more than 45,000 federal airport screeners. It would also abolish their current pay-for-performance compensation structure and change it instead to the General Schedule pay system. The bill was placed on a calendar of business, where it has been awaiting a vote or further action.

In recent years, reports have been issued by labor unions with an interest in winning collective bargaining rights, challenging the TSA attrition rates and treatment of its workers. TSA has since issued its own reports on these, so it’s difficult to know which is accurate. Testimony to Congress in 2007 revealed that some of these claims were not entirely accurate, could have been misleading or in some cases may not have been presented fairly because the labor unions left out latter years of data that showed TSA management and performance improvement since the first few years of the TSA’s inception.

At the same time, if complaints from TSA employees are in fact submitted at a high rate, there is evidence of management abuse or poor working conditions, and/or the workers attrition rate is unusually high, then we would expect Congress to investigate this and conduct an independent review by a party without a vested interest in a potential collective bargaining arrangement. No one wants to see any workers mistreated or not afforded the basic rights that even non union employees in the private sector receive.

Lastly, there is the anecdotal and documented evidence and the concern of the public. Given the increasingly aggressive tactics of several labor unions, which has been widely documented (and even analyzed) in the last several years, many American citizens have voiced their concerns to their Congressional representatives and Senators that union leaders might encourage members to behave in a hostile manner in an effort to intimidate airport customers and/or TSA management. Many constituents have written letters to this effect, stating concerns that such behavior would not only be a disruption, but in itself could present a security risk. Pointing also to the examples of violence committed by SEIU members against conservative activists on two occasions this past summer, and violence between SEIU and competing labor unions, some are concerned that disputes among competing labor unions or among advocacy groups could also interfere with homeland security duties. Recent disputes have shut down hospitals, blocked Red Cross blood deliveries, and spawned labor union corporate campaigns * against private and public facilities. We also know that AFGE and NTEU have already made their intentions known to challenge one another for exclusive collective bargaining rights to TSA employees. Perhaps these unions are fine, perhaps they are different from the many we’ve all been affected by this year. But this, some fear, could have disruptive impacts on their union member workplaces, especially if a third union in particular decides to jump into the race. All of these issues are of great concern to average American citizens, who worry that homeland security is too important to risk.

For these reasons, many are hoping that those politicians in favor of passing HR 1881, or other legislation that would mandate collective bargaining for TSA employees, will at least afford the American people a general public debate on this topic. Dismissing Senator Demint is dismissing We the People. It’s time our lawmakers stopped dismissing the voices of their constituents as “astroturf” and started believing that the voices they’re hearing in their heads are actually real – they’re just the voices coming from outside your door.

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