Union Election without Bargaining Rights

In Department of Homeland Security and AFGE and NTEU, 65 FLRA No. 53, 65 FLRA 242 (November 12, 2010), the Federal Labor Relations Authority (FLRA), in a 2-1 decision, cleared the way for TSA baggage screeners to hold an election to decide if they wish to be represented by a union, and if they do, to chose between the American Federation of Government Employees (AFGE) and the National Treasury Employees Union (NTEU). This case is precedent-setting because TSA employees do not enjoy "collective bargaining' rights even if they chose to be represented by a union.


Both AFGE and NTEU filed petitions asking FLRA to conduct an election to see if the TSA baggage screeners desired to be represented by a union. Under FLRA procedures, the decision as to whether the legal requirements for conducting an election have been met is made by one of the FLRA's regional directors. In this case, relying on a prior FLRA decision, the regional director dismissed AFGE's and NTEU's petitions on the grounds that TSA's employees do not enjoy collective bargaining rights. When Congress passed the Aviation and Transportation Security Act (ATSA) in 2001, the agency was given authority to determine conditions of employment "notwithstanding any other provision of law.' Pursuant to that provision in the ATSA, the agency issued a memorandum deciding that TSA screeners shall not be entitled to engage in collective bargaining.

In 2003, in Dept. of Homeland Security, TSA, 59 FLRA 432 (2003), over then-Member Pope's (now Chairman) dissent, the FLRA held that the Federal Labor-Management Relations Statute (FSLMRS) permits employees to be represented for purposes of "collective bargaining,' and that a union obtaining exclusive recognition for collective bargaining obtains the full range of exclusive representational; rights under the FSLMRS. The FLRA further held then that there was nothing in the agency's memo to indicate that agency intended for a union to have less than the full rights afforded to exclusive representatives. Lastly, in the 2003 decision, the FLRA held that there was no evidence of Congressional intent to give the FLRA the power to grant exclusive representatives status for purpose other than to decide a representative other than for collective bargaining – there was no "hybrid exclusive representative.' Therefore, the 2003 decision held that TSA baggage screeners were not entitled to a representational election to determine if the employees wish to be represented by a union. But now, with Member Pope as Chairman, and commanding a majority, the FLRA has reversed its 2003 decision.

The FLRA now holds that it is not necessary for a union to actually receive "collective bargaining' rights in order to be certified as the exclusive representative under the FSLMRS. To reach this conclusion, the Authority first said its focus, as dictated by the FSLMRS, is on the wishes of the employees, not the wishes of the employer. Specifically, the FSLMRS grants the FLRA the jurisdiction to conduct an election when 30 percent of the employees indicate they wish to be represented for the purposes of collective bargaining. The FLRA reasons that it cannot shirk its responsibility solely because an employer does not intend to afford collective bargaining rights.

Secondly, the FLRA found that, in the present case, apparently unlike 2003, the agency did not object to granting a union exclusive representative status, so long as that right did not extend to collective bargaining. The FLRA noted that there are many other roles of the exclusive representative that do not involve collective bargaining. For example, there are certain "consultation' rights separate from collective bargaining rights; exclusive representatives have the right to be present at "formal discussions' with employees concerning grievances or general conditions of employment. Additionally, the exclusive representative has the right to be present at an agency's investigatory interview of an employee where the employee reasonably believes discipline may result and the employee requests representation. (This is often referred to as a Weingarten interview). In sum, the FLRA concluded, the certified exclusive representative has rights under the FSLMRS that are not dependent upon the right to negotiate collective bargaining agreements. Consequently, the FLRA reversed the TSA 2003 decision and directed the regional director to process AFGE's and NTEU's petitions.

Member Beck dissented, saying the FSLMRS does not authorize an election if the exclusive representative is prohibited from engaging in collective bargaining. He continues to agree to the central holding of the FLRA's 2003 decision in TSA. Presumably, the regional director will proceed to schedule an election among TSA baggage screeners sometime in early 2011. The screeners could decide to be represented by AFGE or NTEU, or select not to be represented at all.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.