Effect given to the recommendations of the committee and the Governing Body - Report No 351, November 2008

Case No 2292 (United States of America) - Complaint date: 14-AUG-03 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 42. The Committee examined this case – which concerns executive orders which deny federal airport screeners their collective bargaining rights by exempting them from the Federal Service Labor-Management Relations Statute (FSLMRS) – at its November 2006 meeting [343rd Report, paras 705–798]. On that occasion, the Committee reached the following recommendation:
   • Recalling that priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service, the Committee requests the Government to carefully review, in consultation with the workers’ organizations concerned, the matters covered within the overall terms and conditions of employment of federal airport screeners which are not directly related to national security issues and to engage in collective bargaining on these matters with the screeners’ freely chosen representative. It requests the Government to keep it informed of the measures taken in this regard. The Committee further trusts that all necessary measures will be taken to ensure that the organizational rights of these employees are effectively guaranteed in practice and that they may be represented in respect of their individual grievances by the organizations freely chosen by them.
2. 43. The Government provided information in communications dated 1 February 2007 and 22 April 2008. In its communication dated 1 February 2007, the Government raises some concerns with regard to certain procedural irregularities that it believed resulted in the Committee’s reviewing the case without the benefit of all of the relevant facts (this communication had already been brought to the Committee’s attention at its meeting in March 2007). According to the Government, the examination by the Committee at its November 2006 meeting, did not take into consideration and in fact barely acknowledged the full factual circumstances relating to the employment of the airport security screeners, now employed as Transportation Security Officers (TSOs) by the Transportation Security Administration (TSA). The Government adds that when, in March 2005, the Committee adjourned the examination of this case and requested additional information from both the Government and the complainant, the Government advised the Office that it intended to submit further observations once it received and reviewed the complainant’s supplementary documentation. Its rationale was that this would obviate the need to provide two additional sets of observations. It continued to await further input from the complainant and had every reason to believe that if the Committee decided to proceed to review the case without the benefit of the complainant’s supplemental submission, it would be provided with ample time to provide its own additional input. The Government states that it was extremely disappointed that this did not happen. The Government finally indicates that it respects the role of this Committee in upholding the principles of freedom of association as reflected in the ILO Constitution and the ILO Declaration on Fundamental Principles and Rights at Work, and will provide the Committee with a detailed response to its conclusions and recommendations.
3. 44. In its communication dated 22 April 2008, the Government recalls as indicated in Appendix 5 of its initial observations, submitted in December 2004, that the TSA was established immediately following the terrorist attacks of 11September, 2001, in response to public demand for measures that would ensure that safety in the skies was given the same priority as safety on the streets and at the borders. Key to the ability to provide protection of the nation’s civil aviation system was the creation of a federal workforce of professional civil servants to screen passengers and cargo at the nation’s approximately 450 commercial airports.
4. 45. Since the December 2004 submission, the Government has continued to enhance the professional status of the TSO workforce. The TSA made significant changes in the job title, job series and pay levels for screeners. Initially, screeners fell within Government’s civil service job series for safety technicians and were paid an entry level salary for that series. More recently, screeners have been reclassified to the position of TSO, within the civil service job series for compliance inspection. This position is within the law enforcement family of job series. Full performance of this position in this series is paid at a higher band level with more expert levels at the two higher band levels. This change has served to improve morale and allowed TSA to compete in attracting highly qualified employees. Significantly, this change also makes the TSOs more competitive in applying for other related law enforcement positions within the Department of Homeland Security (DHS), including the US Border Patrol and the Federal Air Marshal Service. In addition, TSA requires rigorous national security background checks for all TSOs that are equivalent to those required for employees to receive information classified as “secret”, a level of security classification held by top government officials.
5. 46. While TSOs do engage in specific tasks within defined parameters (as observed by the Committee in the previous examination of this case), they also perform various tasks requiring discretion as to the methods and means of performing their work. A review of the TSO job description shows that TSOs, in performing their responsibilities – identifying dangerous objects in baggage, cargo and on passengers and preventing those objects from being transported onto aircraft – must bring many skills to bear in fully performing their jobs. This work calls for independent judgement and the exercise of discretion. The Standard Operating Procedures for screening operations also give the TSOs considerable discretion in making decisions on the level and kind of screening.
6. 47. A review of the scope of TSOs’ responsibilities throughout a typical day makes this clear. TSOs receive a security intelligence briefing before starting their shifts. TSOs use and monitor sophisticated security systems, including walk-through and hand-held metal detection equipment, X-ray systems, explosive trace detection systems, and explosive detection systems. Working from their experience, their training, the up to date security information they receive at the start of the shift, and the information they obtain from the detection equipment, the TSOs must exercise judgement and discretion as part of their responsibilities with respect to each passenger who approaches the checkpoint. A TSO may decide to clear the passenger and his or her bags for entry into the secured area, or a TSO may decide to refer a passenger or his or her bags for additional screening because something alerts the TSO that the person or baggage may pose a threat. In the course of screening, a TSO must secure unauthorized weapons and hazardous materials, and prevent unauthorized entry to secured areas of the airport and other transportation areas. TSOs must be observant of suspicious behaviour that might require additional scrutiny, either during screening or by law enforcement officials. They must be on the look-out for vulnerabilities that may provide an opening for a terrorist to try to harm the aircraft or any passengers, and respond to security breaches. They must constantly evaluate the screening processes and procedures with a view to suggesting improvements. They may perform maintenance of complicated screening equipment. Clearly, all of these duties relate to the TSOs’ national security function.
7. 48. The day-to-day duties of TSOs could be viewed as routine and mechanical only by an observer who does not understand the complex interplay of intelligence, sophisticated technology and careful observation of passenger behaviour that are involved in security screening. A review of a particular shift during which no terrorist act occurred on a TSO’s watch should not lead to the conclusion that a TSO is only exercising specific tasks within clearly defined parameters. There are several layers of security that work together to provide a security net protecting passengers and aircraft. TSOs must be prepared to react quickly and appropriately to potential threats to security, which, unfortunately, do occur. At the agency level, there is a related need to respond quickly to newly obtained intelligence regarding the security landscape, which may be illustrated by a recent emergency situation. When British authorities exposed a plot to blow up several US aircraft using an innovative method of constructing an improvised explosive device, TSA rewrote its security directives overnight and was able to implement new passenger screening requirements immediately. This required TSA to rapidly inform a security workforce of approximately 43,000, including the TSOs, and train that workforce in a matter of hours on new procedures at the security checkpoints. The TSOs were instrumental in effecting this major change in US security procedures. The Government attaches to its reply a chart that shows the items that have been confiscated by TSOs from passengers from 2005–07.
8. 49. Collective bargaining requirements, including potentially bargaining with a union over aspects of implementation of technology, deployment of personnel, the means and methods of work, or the impact and implementation of changes in the workplace, would have greatly impaired TSA’s ability to make rapid changes in response to a threat such as the one described above. The Government’s action should not suggest, as the complainant argues, that the Government views collective bargaining as a security threat. Rather the notification and negotiation process entailed in collective bargaining is incompatible with the need to adapt and respond to terrorist threats without delay. Furthermore, in the context of communications between TSA and the complainant AFGE, the union expressed its view that personnel decisions be based on seniority. This is also incompatible with the national security requirement, embodied in the Aviation and Transportation Security Act (ATSA), for retention based on demonstrated performance and subject matter expertise. TSOs also accomplish other security missions both at the airport and with respect to other transportation modes. TSOs are designated as emergency essential personnel who may be required to stay and perform their duties in emergency situations, including national and local emergencies and extreme weather. For example, immediately after Hurricane Katrina, TSA deployed TSOs to New Orleans, Louisiana, to assist in reopening the New Orleans airport and maintaining security while hundreds of sick and displaced persons were airlifted out of the city. TSOs accomplished functions ranging from collecting unauthorized weapons and preparing people for emergency evacuation transport, to cleaning up the airport and landing strips, and collecting identification of displaced persons. Without the flexibility to deploy TSOs from various locations immediately, emergency air transportation out of the New Orleans area would have been significantly hampered, which would have worsened an already catastrophic situation. Further, following the Madrid train bombings, TSA stepped up its efforts to enhance security on rail and mass transit systems nationwide by creating and deploying Visual Intermodal Protection and Response (VIPR) teams. Comprised of federal air marshals, surface transportation security inspectors, TSOs, behaviour detection officers and explosives detection canine teams, VIPR teams over the past two years have augmented security at key transportation facilities in urban areas around the country. VIPR teams work with local security and law enforcement officials to supplement existing security resources, provide deterrent presence and detection capabilities, and introduce an element of unpredictability to disrupt potential terrorist planning activities. TSOs may also provide security screening during significant public events designated by the Government as National Special Security Events. These types of missions, consisting of continuously changing circumstances, are also incompatible with collective bargaining.
9. 50. The Government believes that the Committee’s conclusions and recommendations do not fully recognize the extraordinary impact that collective bargaining would have on the day-to-day security operations of TSA. The administrator of TSA is responsible for managing a complicated security system in place at more than 450 commercial airports, screening approximately 2 million passengers a day, on thousands of commercial flights. The necessity to react to changing air carrier schedules, weather disruptions, and special events that focus large numbers of passengers at particular airports and the necessity to provide for screening, not only of passengers and their checked baggage, but of air cargo, airport employees, and contractors working at airports, requires the same flexibility in scheduling and duties that are also required during recognized emergencies. Simply put, collective bargaining is incompatible with the need to flexibly manage this workforce to effectively accomplish TSA’s mission.
10. 51. The Committee questioned whether the TSOs may appropriately be considered public servants engaged in the administration of the State, suggesting instead that they might be analogous to other persons employed by the Government, by public undertakings, or autonomous public institutions. Clearly, the TSA is neither a public undertaking nor an autonomous institution. It is a subdivision of the DHS, a cabinet-level agency, which comprises many other agencies that address border and other national security and emergency response. The TSOs are all civil service employees of DHS. Accordingly, they are civil servants employed by a government ministry.
11. 52. The Government is troubled that the Committee has suggested that the TSOs are not public servants engaged in the administration of the State because they are “clearly not making national policy that may affect security”. This appears to be a new and unduly restrictive narrowing of the Committee’s long-held understanding of this concept, which the Committee has traditionally described as persons who by their functions in Government ministries or other comparable bodies are “directly engaged in the administration of the state”, or who are acting as “supporting elements” in these activities.
12. 53. In fact, the mission of TSA relates to one of every nation’s primary responsibilities: the protection of its citizens, borders, and critical infrastructure. The TSOs are the first line of defence in guarding and protecting US commercial flights from terrorist attacks of an unforeseen nature and the guarantors of security in air travel. Their duties are directly related to the protection and preservation of the military, economic and productive strength of the United States. Even Conventions Nos 87 and 98 recognize that the principle of the right to engage in collective bargaining is tempered by the recognition that states may determine for themselves the degree to which military and police may engage in collective bargaining. Article 9 (1) of Convention No. 87 and Article 5 (1) of Convention No. 98 are identically worded and provide that “The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws and regulations”. The TSOs’ function is analogous to that of the police and armed forces and, as discussed above, the TSO job classification falls in the law enforcement family of job series. While TSOs fall within the exception for persons engaged in the administration of State, even if this exception did not exist, TSOs must be considered as belonging to the category of persons tasked with the job of securing the nation’s safety. As such, the Government believes that it may appropriately determine for itself the extent to which the right to engage in collective bargaining should be a part of the TSOs’ terms and conditions of work.
13. 54. The Committee expressed the concern that the determination of the TSA administrator is not reviewable by the judicial branch of the Government. However, the administrator’s authority to exempt TSOs from collective bargaining has been judicially reviewed. [See American Federation of Government Employees, AFL-CIO v. James M. Loy, 367 F.3d] 932 (D.C. Cir. 2004).
14. 55. A question may arise as to why privately employed contract screeners authorized under 49 USC.§ 44919 (Pilot Program) and § 44920 (Screening Opt-Out Program) are authorized to engage in collective bargaining while federal government TSOs are not. When the ATSA was passed, Congress gave TSA the statutory authority to exempt federal Government TSOs from collective bargaining on the grounds of national security, which TSA properly exercised in January 2003. This authority has been recognized and upheld by the US judicial system. [American Federation of Government Employees, AFL-CIO, v. James M. Loy, 367 F.3d 932 (D.C. Cir. 2004)]. However, Congress did not give TSA the statutory authority to exempt contract screeners from collective bargaining. [Firstline Transportation Security, Inc. and International Union, Security, Police and Fire Professionals, 347N.L.R.B. No. 40 (28 June, 2006).]
15. 56. To understand this difference in treatment, it is necessary to remember the circumstances under which the statute creating the TSA was passed. In responding to the crisis of confidence in air travel that occurred in the aftermath of the attacks of 11 September 2001, the question of whether security screeners would be a professional force of federal employees or whether they would be employed by government contractors was hotly contested. The belief that a professional force of federal employees qualified as specified by law would best provide safety in air travel prevailed. However, a compromise measure for those who believed that these services should be provided by the private sector, was included in the form of the Pilot Program and the Screening Opt-out Program. Under the Pilot Program, TSA selected five airports from more than 450 commercial airports nationwide where the screening of passengers and baggage would be performed by qualified private screening companies under contract with TSA. This programme is vastly different from the system that was in place prior to the 11 September attacks. Instead of a purely private sector model, the Pilot Program is actually a hybrid Government–private model in which the private sector contractor must not only comply with ATSA’s strict standards, but where the TSA is directly involved in the day-to-day administration of the contracts and has direct operational authority and control over security activities in these airports.
16. 57. As noted in Firstline Transportation Security, TSA still has the authority to completely control the security requirements of the functions performed by the contractor [347 N.L.R.B. No. 40, slip op. at 9]. It is important to understand that the security requirements of TSA are not negotiable, including those changes that must be immediately implemented due to a potential threat to national security. Under these contracts, the contractor is solely responsible for managing its own workforce and meeting contract requirements established by TSA for providing screening services. If the contractor is not complying with the strict operational requirements demanded by TSA, TSA may immediately terminate the contract for failure to comply. Accordingly, should the collective bargaining process create a circumstance in which the contractor would not be able to meet TSA’s operational requirements and thereby fail to meet its contractual obligations, TSA would be authorized to terminate the contract.
17. 58. The Government also refers to the issue of TSA workplace initiatives. Even though the right to engage in collective bargaining is not included in the terms and conditions of the TSOs’ employment, TSA has undertaken many initiatives to create a hospitable and supportive working environment. As TSA has matured as an organization, TSA has proactively taken steps to improve morale, reduce injuries and attrition, and address workplace quality issues in general. TSA’s goal to be a responsible employer of choice is based on the philosophy that the engagement of and direct communication between front-line employees, management, and leadership will bring about a high-performing agency, characterized by high morale, low attrition, and sharing of best practices. The Government provides an update on various programmes that TSA has instituted that provide TSOs with due process and the ability to raise workplace issues for prompt resolution.
18. 59. The Government refers to a Model Workplace and Integrated Conflict Management System and National Advisory Councils (NAC). The NAC were created to further a regular dialogue between leadership and TSA’s field-deployed workforce, including the uniformed TSO population. Two National Advisory Councils were established in January 2006. One advisory council is comprised of TSOs, Lead TSOs, and Supervisory TSOs, and the other of Assistant Federal Security Directors (AFSDs) for screening. These councils meet together quarterly to raise and discuss issues that affect the TSO work environment, morale, and performance with TSA leadership. Members of the two advisory councils regularly work together to consider and make recommendations with respect to employee concerns and performance, further strengthening the communication between the TSO workforce and management. These National Advisory Councils provide the TSO workforce with direct access to the administrator and senior management on all issues concerning security and workforce conditions and have given rise to a number of initiatives relating to the workplace climate and conditions of the TSOs, including those related to a Safety and Wellness Culture, a Career Progression Program, Alternative Resolutions to Conflict (ARC), a TSO Bonus Program and Pay for Performance, the Federal Employees Health Benefits (FEHB) pilot program (to allow part-time TSOs to obtain more affordable health benefits), the Office of the Ombudsman, and an Idea Factory.
19. 60. The Government also refers to the Disciplinary Review Board (DRB). The DRB provides the TSO workforce with the right to appeal adverse personnel actions, such as a suspension for more than 14 days or removal, to the DRB. Union representatives may act as personal representatives for individuals who appeal to this board. TSA was not required to implement such an appeals body, but wanted to provide the TSO workforce with a fair, transparent and prompt appeals process. The DRB incorporates due process procedures similar to those of the Merit Systems Protection Board (MSPB). In addition, the DRB provides a more streamlined and rapid process than the MSPB.
20. 61. In conclusion, the Government indicates that the foregoing observations, relating to the employment of TSOs as well as more current information relating to TSA’s workplace initiatives, demonstrate that TSA is in full conformity with the fundamental ILO principles of freedom of association and employee participation in matters relating to their employment. TSOs enjoy the right to association and to organize, and may form and join unions. TSA has facilitated this right by establishing procedures to allow members of unions to have their dues automatically deducted from their pay checks, and by allowing union members to be represented by their union in grievance procedures. US law provides, consistent with ILO principles, that the Administrator of TSA may determine the terms and conditions of employment of the TSOs. Based upon considerations of national security, the Administrator of TSA appropriately determined that the notification and negotiation requirements entailed in collective bargaining are incompatible with TSA’s need to rapidly adapt and respond to security threats. TSA must use security expertise and performance as the basis for personnel decisions in order to successfully respond to evolving threats. Accordingly, collective bargaining was not included as part of the TSOs’ terms and conditions of employment.
21. 62. These observations should provide a fuller understanding of the Government’s rationale for determining that TSOs are a category of employee for whom there is a valid exception to the principle of the right to engage in collective bargaining. Moreover, TSOs clearly fall within the category of persons for whom the availability of collective bargaining is a matter of national law. As noted above, TSA has initiated a variety of innovative programs which have both provided TSOs with the ability to address their workplace issues and served to improve their working environment.
22. 63. The Committee takes due note of the detailed information provided by the Government concerning the work of Transport Security Officers (TSOs) and the various workplace initiatives that have been undertaken. The Committee notes with interest that according to the Government, the TSA has established new procedures to allow union members to be represented by their union in grievance proceedings, as requested by the Committee.
23. 64. The Committee also notes that the Government maintains its position that TSOs are public servants engaged in the administration of the State because the TSA is a subdivision of the Department of Homeland Security, a cabinet-level agency which addresses border and other national security and emergency responses. In this regard, the Committee recalls from the previous examination of this case its concern relating to the use of an ever-enlarged definition of work connected to national security to exclude employees that are further and further away from the type of employee considered to be “engaged in the administration of the State” [343rd Report, para. 794]. While the Committee does consider that the work of TSOs, as the tasks of numerous other workers across the country that affect or implement in one form or another the measures adopted for national security reasons, relate without a doubt to questions of security, it cannot consider, in keeping with its previous recommendations, that the clearly non-policy making aspects of those working in an enlarged security administration can be assimilated without limit into a category of workers whose collective bargaining rights can be denied.
24. 65. The Committee further notes in this respect, the Government’s argument that the tasks of federal airport screeners – now transportation security officers TSOs – are incompatible with the right to engage in collective bargaining because of the important security component of these tasks. The Government considers these aspects as non negotiable and emphasizes that collective bargaining requirements, including potentially bargaining with a union over aspects of implementation of technology, deployment of personnel, the means and methods of work, or the impact and implementation of changes in the workplace, would have greatly impaired TSA’s ability to make rapid changes in response to a threat. The Committee has however addressed the security concerns in its previous examination of this case and in this light focused its recommendation on collective bargaining over the terms and conditions of employment of TSOs which are not directly related to national security issues, and which would include issues such as wages, general hours of work, etc. While taking due note of the various programmes that the TSA has instituted to provide TSOs with due process and the ability to raise workplace issues for prompt resolution, the Committee observes that these do not constitute substitutes for the right to engage in collective bargaining.
25. 66. In light of the above, the Committee once again urges the Government to carefully review, in consultation with the workers’ organizations concerned, the matters covered within the overall terms and conditions of employment of TSOs which are not directly related to national security issues so as to engage in collective bargaining on these matters with the screeners’ freely chosen representative. The Committee requests the Government to keep it informed in this respect.