United States, Department of Homeland Security, Border and Transportation Security Directorate, Transportation Security Administration (Agency) and American Federation of Government Employees, AFL-CIO (Labor Organization/Petitioner)

[ v59 p423 ]

59 FLRA No. 63

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY
BORDER AND TRANSPORTATION
SECURITY DIRECTORATE
TRANSPORTATION SECURITY
ADMINISTRATION
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
AFL-CIO
(Labor Organization/Petitioner)

WA-RP-03-0023
BN-RP-03-0008
BN-RP-03-0012
CH-RP-03-0018
WA-RP-03-0029
DA-RP-03-0002
CH-RP-03-0021
BN-RP-03-0015
BN-RP-03-0016
AT-RP-03-0012
CH-RP-03-0025
CH-RP-03-0037
CH-RP-03-0038
WA-RP-03-0063

_____

DECISION AND ORDER
ON APPLICATION FOR REVIEW

November 4, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on an application for review filed by the Petitioner under § 2422.31(c) of the Authority's Regulations. The Petitioner seeks review of the Regional Director's (RD's) decision to dismiss petitions seeking elections to determine whether employees, including passenger screeners, baggage screeners, and lead screeners, of the Transportation Security Administration (TSA) wish to be represented by the Petitioner for the purpose of collective bargaining. For the reasons that follow, we grant the Petitioner's application for review and affirm the RD's decision to dismiss the petitions.

II.     Background and RD's Decision

      The Union filed petitions seeking elections to determine whether employees, including passenger screeners, baggage screeners and lead screeners for the TSA, wished to be represented by the Petitioner for the purpose of collective bargaining. RD's Decision at 2. In resolving this question, the RD first noted that "there are no material facts in dispute on the issue of jurisdiction and that the record contains sufficient evidence on which to base a decision on the issue of whether the Authority has jurisdiction to conduct elections as requested by the Petitioner." Id. at 3 (citing Federal Mediation and Conciliation Serv., 52 FLRA 1509, 1516 (1997).

      In November of 2001, Congress passed the Aviation and Transportation Security Act (ATSA) which created the TSA, a department within the United States Department of Transportation. See 49 U.S.C. § 114. Within the language of the ATSA, two provisions are of particular importance to this matter. First, in 49 U.S.C. § 114(n) (as codified), Congress stated:

The personnel management system established by the Administrator of the Federal Aviation Administration under section 40122 shall apply to employees of the Transportation Security Administration, or, subject to the requirements of such section, the Under Secretary may make such modifications to the personnel management system with respect to such employees as the Under Secretary considers appropriate, such as adopting aspects of other personnel systems of the Department of Transportation.

Second, in 49 U.S.C. § 44935 Note, Congress stated:

Notwithstanding any other provision of law, the Under Secretary of Transportation for Security may employ, appoint, discipline, terminate, and fix the compensation, terms, and conditions of employment of Federal service for such a number of individuals as the Under Secretary determines to be necessary to carry out the screening functions of the Under Secretary under section 44901 of title 49, United States Code. The Under Secretary shall establish levels of compensation and other benefits for individuals so employed. [n2]  [ v59 p424 ]

      Based on the above language, on January 8, 2003, the Under Secretary of Transportation for Security issued a memorandum regarding the collective bargaining rights of TSA security screeners. It stated as follows:

By virtue of the authority vested in the Under Secretary of Transportation for Security in Section 111(d) of the Aviation and Transportation Security Act, Pub. Law No. 107-71, 49 U.S.C. § 44935 Note 2001, I hereby determine that individuals carrying out the security screening function under section 44901 of Title 49, United States Code, in light of their critical national security responsibilities, shall not, as a term or condition of their employment, be entitled to engage in collective bargaining or be represented for the purpose of engaging in such bargaining by any representative or organization.

      In November of 2002, prior to the issuance of this memorandum, Congress enacted the Homeland Security Act (HSA), Pub. L. No. 107-296, 116 Stat. 2135 (2002), which created the Department of Homeland Security (DHS). As the missions of both the TSA and DHS were similar in nature, (i.e., to prevent terrorist attacks within the United States, reduce the vulnerability of the United States to terrorism, minimize the damage from attacks and assist in the recovery from terrorist attacks) the TSA was transferred to the DHS. HSA, § 403(2), 6 U.S.C. § 203. However, as noted by the RD, "Congress provided that the Transportation Security Administration would remain a `distinct entity' within the DHS for two years following the enactment of the legislation" and that the Under Secretary of Transportation for Security would now be known as the Administrator of the Transportation Security Administration (referred to as the "Under Secretary" throughout this decision). RD's decision at 14 n.25, (citing 6 U.S.C. § 234).

The RD set forth the following issues for resolution:
(1) Did Congress intend to confer on the Under Secretary of the Agency sole and exclusive discretion to determine conditions of employment of security screening personnel and thus to exempt the Agency from the obligation to bargain collectively with a labor organization under chapter 71 of title 5 of the U.S. Code?
(2) Did the transfer of the Agency to the Department of Homeland Security alter the original intent of Congress in regard to the discretion that the head of the Agency exercises in the employment of security screening personnel?
(3) Even if the Agency is exempt from the obligation to bargain collectively under chapter 71 of title 5, may the Federal Labor Relations Authority conduct an election for the purpose of determining whether the Petitioner may exercise on behalf of security screening personnel any of the rights set forth in chapter 71 of title 5?

RD's Decision at 15-16.

      With respect to the first issue, the RD found that Congress intended the Under Secretary to have "sole and exclusive" discretion to determine matters that otherwise are established by statute, such as the various rights granted employees by chapter 71 of title 5, U.S.C.. RD's Decision at 20. In support of this conclusion, the RD referred to 49 U.S.C. § 44935 Note, and determined that:

[o]f particular relevance to the analysis here, the Authority has noted that where a statutory provision pertaining to a given subject matter provides for the matter to be determined "notwithstanding" or "without regard to" any other law, the provision affords agency officials "sole and exclusive discretion" to determine the subject matter.

RD's Decision at 20-21 (citing United States Dep't of Defense, National Imagery and Mapping Agency, St. Louis, Mo., 57 FLRA 837, 853 n.10 (2002) (NIMA)).

      Moreover, in making this determination, the RD rejected the Petitioner's arguments pertaining to 49 U.S.C. § 114(n), in which the Petitioner argued that Congress had not excluded collective bargaining for screeners and that the Under Secretary's discretion to eliminate collective bargaining was limited by 5 U.S.C. Chapter 71. RD's Decision at 21, 23. Rather, the RD determined that based on the plain language of the ATSA and its legislative history, Congress "intended to treat security screeners differently than other employees of the Agency and to grant to the Under Secretary unfettered discretion in making decisions about `terms[] and conditions of employment of Federal service' of the security screeners apart from the requirements of 49 U.S.C. § 40122." RD's Decision at 22 (citing United States Dep't of Veterans Affairs, Hunter Holmes McGuire Med. Ctr., 54 FLRA 471, 475-76 (1998)). [ v59 p425 ]

      Additionally, the RD rejected a related argument of the Petitioner by noting that he found "nothing in the Petitioner's submissions in this proceeding to support a conclusion that only chapter 71 of title 5, and none of the other provisions of 49 U.S.C. § 40122(g)(2), was retained under the ATSA to be applicable to security screener personnel." RD's Decision at 23.

      Finally, the RD determined that "nothing in the specific provisions in ATSA, section 111 regarding training and employment standards of security screeners is inconsistent with the unfettered discretion conferred on the Under Secretary by section 111(d)." Id. at 23 (citing Colorado Nurses Association v. FLRA, 851 F.2d 1486, 1491-1492 (D.C. Cir. 1988) (cited for proposition that courts have favored granting discretion in the context of a specific statutory scheme or focus on types of employees or subject matter, as against the general language establishing the obligation to bargain under chapter 71 of title 5). In so finding, the RD noted that:

this conclusion does not nullify section 114(n) of title 49, since that provision continues to apply to all other employees of the Agency; under section 111(d) the discretion is reserved to the Under Secretary to apply to security screeners any aspect of the personnel management system established for other employees of the Agency. RD's Decision at 24.

      Turning to the second issue, the RD found that the TSA's transfer to the DHS did not alter the intent of § 111(d) of the ATSA. Id. In reaching this conclusion, the RD noted that both parties agreed that TSA was preserved as a distinct entity and that the DHS was not vested with any authority over the TSA that is not already vested to the Under Secretary pursuant to 49 U.S.C. chapter 449.

      With respect to the remaining issue, the RD determined that there is no other basis under the Statute to assert jurisdiction and conduct an election. Id. The RD found that "[a]s the plain language of the Statute shows . . . the purpose of the statutory scheme is collective bargaining [and] [t]here is no evidence of Congressional intent to confer on the Authority the power to determine an appropriate unit and to conduct an election for any purpose other than to determine a representative for collective bargaining." Id. at 26 (citing AFGE, AFL-CIO, Local 2953 v. FLRA, 730 F.2d 1534, 1538 (D.C. Cir. 1984) (Local 2953).

Accordingly, in summary the RD stated:
Therefore, I have concluded that I am without authority under section 7111(b)(1)(A) of the Statute to conduct an election unless the purpose of the representation petition is to determine whether the employees wish to be represented for the purpose of collective bargaining. In Part V(B)(1), I concluded that Congress granted the Under Secretary unfettered discretion in determining the terms and conditions of employment of security screeners. Since Congress intended that the Under Secretary not be compelled to exercise this discretion through collective bargaining, and since the only purpose of this proceeding under section 7111(b)(1)(A) of the Statute is to determine whether the security screeners wish to be represented by the Petitioner for collective bargaining, there is no basis under law to reach any result other than to dismiss these petitions.

RD's Decision at 27.

III.     Positions of the Parties

A.     Petitioner's Application

      The Petitioner argues that the Authority should grant its petition for review because: (1) there is an absence of precedent; and (2) the RD failed to apply established law.

      With regard to the above, the Petitioner argues that "[t]here is an absence of Authority precedent regarding TSA and whether the ATSA permits collective bargaining." Application at 5. Moreover, the Petitioner notes that in light of the court's recent decision in AFGE, AFL-CIO v. Loy, No. 03-0043 2003 WL 22076475 (D.D.C. Sept. 5, 2003) appeal docketed, No. 03-5256 (D.C. Cir. Sept. 26, 2003), the Authority has exclusive jurisdiction to determine "whether the Authority has jurisdiction over the TSA." Id. at 5-6.

      On the merits of the application, the Petitioner argues that the RD failed to apply established law in three respects because: (1) the statutory construction of the ATSA grants the FLRA jurisdiction; (2) the legislative history indicates Congressional intent for FLRA jurisdiction; and (3) deprivation of FLRA jurisdiction would be a deprivation of Constitutional protection. Id. at 6, 8, 10. Each is detailed more thoroughly below.

      First, the Petitioner contends that under 49 U.S.C. § 114(n), the FAA system referenced therein "explicitly incorporates the provision of Title 5 relating to labor/management relations." Id. at 7 (citing 49 U.S.C. § 40122(g)(2)(c)). The Petitioner asserts that under 49 U.S.C. § 40122, the provision "appl[ies] to TSA employees, and the discretion given to the Under Secretary [ v59 p426 ] was to allow for the addition of aspects of other Department of Transportation personnel systems, not deviate from the core elements in the FAA personnel system." Application at 7.

      Additionally, the Petitioner argues that the Under Secretary's discretion under § 111 of the ATSA "extends to specific numerated matters, including appointment, termination, fixed compensation and the terms and conditions of employment" but not the right to organize. Id. In making this argument, the Petitioner also cites to 10 U.S.C. § 461 and argues that Congress has used specific statutory language where an agency has nonreviewable discretion to exempt employees from statutory collective bargaining and union recognition.

      Second, the Petitioner contends that the legislative history of the ATSA suggests that Congress only gave the Under Secretary discretion to "improve" certain terms and conditions of employment, not eliminate collective bargaining rights. Application at 9-10 (citing Cong. Rec S10446 [daily ed. Oct. 10, 2001] Senator Sarbanes; Cong. Rec. H8313 [daily ed. Nov. 16, 2001] Rep. Schakowsky; Cong. Rec. H7773 [daily ed. Nov. 6, 2001] Rep. Wynn; Cong. Rec. S11980[daily ed. Nov. 16, 2001] Senator Warner; Cong. Rec. H7776 [daily ed. Nov. 6, 2001] Rep. Allen.)

      Third, the Petitioner argues that the RD's interpretation and application of the ATSA violates the First, Fifth and Fourteenth Amendments of the United States Constitution. Application at 11. With regard to the First Amendment, it contends that the First Amendment protects the rights of screeners to "organize collectively" and "engage in collective bargaining." Id. (citing NTEU v. Fasser, 428 F. Supp. 295 (1976); Police Officers' Guild, Nat. U. of Pol. Of. v. Washington, 369 F. Supp. 543 (D.D.C. 1973); United Federation of Postal Clerks v. Blount, 325 F. Supp. 879 (D.D.C. 1971); National Association of Letter Carriers v. Blount, 305 F. Supp. 546 (D.D.C. 1969)).

      Additionally, the Petitioner argues that the "RD has interpreted the ATSA in such a manner to deprive employees, without any specific justification, of their right to unionize and raise[s] the specter of the ATSA's constitutionality." Application at 12. In so arguing, the Petitioner contends that the RD's interpretation and application of the ATSA violates the equal protection clause (citing both the Fifth and Fourteenth Amendment) and is unconstitutional. [n3] 

      The Petitioner states that "[t]he war on terrorism is being fought by millions of Americans on a daily basis" and that the majority of those workers have collective bargaining rights. Application at 13. The Petitioner notes that screeners working at five airports under private jurisdiction are all permitted to petition for union recognition. As such, it contends that "[i]t is wholly capricious to deprive this small group of federal workers . . . to form a union and bargain collectively." Id. In this light, it argues that denying the screener personnel union representation to allow the TSA to have greater management flexibility is "laughable" because the TSA has such flexibility in times of emergency under § 7106 (a)(2)(D) of the Statute. Application at 14.

      The Petitioner also argues that the language of the ATSA is ambiguous and that in interpreting the ATSA the RD's "examination of the legislative history was incomplete in that it did not consider the totality of Congress' intent." Id. at 16 (citing Cong. Rec. H8313 [daily ed. Nov. 16, 2001] Rep. Schakowsky). Finally, the Petitioner contends that the RD had chosen to ignore "his statutory charge to `provide leadership in establishing policies and guidance'" by finding that the benefits and rights enjoyed by Federal employees generally under Chapter 71 do not apply to screeners. Application at 17-18.

B.     Agency's Opposition  [n4] 

      The Agency argues that the RD's decision correctly followed and applied established law. Opposition at 3. In this respect, the Agency contends that § 111(d) of the ATSA (49 U.S.C. § 44935 Note) is clear in stating that the Under Secretary has "exclusive control over employment matters concerning federal airport security screeners." Id. at 2-3. The Agency notes that under § 111(d) of the ATSA that the Under Secretary may fix terms and conditions of employment "[n]otwithstanding any other provision of law[.]" Id. at 2.

      Additionally, the Agency argues that the Petitioner's Constitutional claims are without merit and are not properly before the Authority. Id. at 4. Specifically, the Agency contends that these Constitutional issues [ v59 p427 ] were previously raised before the United States District Court for the District of Columbia for the first time in AFGE, AFL-CIO v. Loy, Civil Action No. 03-0043(RMC)(D.D.C. Sept. 5, 2003), and were found to be without merit. Opposition at 4. Moreover, the Agency argues that the Petitioner failed to raise these claims before the RD and should be barred from raising these claims now under the Authority's Regulations. Id. (citing 5 C.F.R. § 2422.31(b)).

IV.     Analysis and Conclusions

      For the reasons set forth below, we grant review of the Petitioner's application because there is an absence of Authority precedent addressing an issue presented in this case. 5 C.F.R. § 2422.31(c)(3)(i). On review, we conclude that the RD correctly found that the petitions could not be processed under 5 U.S.C. § 7111 because of the Under Secretary's decision to exercise his unfettered discretion to preclude TSA screeners from being represented by an organization for the purposes of engaging in collective bargaining with the Agency. As such, we conclude that the RD did not fail to apply established law under § 2422.31(c)(3)(i) of the Authority's Regulations and, therefore, deny the application for review with regard to these issues.

A.     The RD's Decision Raises an Issue for Which There Is an Absence of Precedent

      Under 5 C.F.R. § 2422.31(c) the Authority may grant an application for review only when the application demonstrates that review is warranted. [n5] The application for review in this case raises an issue concerning whether passenger screeners, baggage screeners, and lead screeners of the TSA have a right to engage in collective bargaining. The legislation at issue, the ATSA, has been recently enacted and the Authority has yet to address its impact on rights granted to employees under chapter 71 of title 5. Specifically, whether the Under Secretary by his January 8, 2003 memorandum can preclude TSA screener personnel from being represented by a labor organization, is a question of first impression. Accordingly, upon review of the issues involved with this case we grant review of the RD's decision under 5 C.F.R. § 2422.31(c)(1).

B.     The RD Did Not Fail to Apply Established Law

      Pursuant to 5 C.F.R. § 2422.31(f), the Authority may "rule on the issue(s) in an application for review in its order granting the review." See, e.g., Nat'l Mediation Board, 56 FLRA 1 (2000) (granting the application for review and resolving the issues submitted). Here, the Petitioner notes that based on its application, the Authority has "jurisdiction to process and rule upon the instant representation petitions." Application at 19. The RD also noted that "the Petitioner stated that the jurisdictional issues involve statutory interpretation and questions of law and that in this regard there were no facts in dispute." RD's Decision at 2-3. Accordingly, we find that in resolving the issue of whether the RD properly applied established law in reaching his decision, there is no need for further briefing by the parties under 5 C.F.R. § 2422.31(g).

1.     The ATSA Grants the Under Secretary Unfettered Discretion to Set the Terms and Conditions of Employment for TSA Screener  Personnel

      We find that under 49 U.S.C. § 44935 Note, Congress carved out an exception to the general principle that employees of the TSA fall under the personnel management system as set forth, and argued by the Petitioner, in 49 U.S.C. § 144(n). Specifically, under 49 U.S.C. § § 44935 Note, the Under Secretary may in his unfettered discretion, among other things, set the terms and conditions of employment for employees carrying out "screening functions" of the TSA "notwithstanding any other provision of law."

      In reaching the above conclusion, we note that in Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993), the Supreme Court stated "[a]s we have noted previously in construing statutes, the use of such a `notwithstanding' clause clearly signals the drafter's intention that the provisions of the `notwithstanding' section override conflicting provisions of any other section." The Supreme Court further noted that the "Courts of Appeals generally have `interpreted similar "notwithstanding" language . . . to supersede all other laws stating that `[a] clearer statement is difficult to imagine.''" Id. (citing Liberty Maritime Corp. v. United States, 928 F.2d 413, 416 (D.C. Cir. 1991). [ v59 p428 ]

      Authority precedent is consistent with the Supreme Court's interpretation. As the RD noted, in NIMA, 57 FLRA at 843 n.10, we reiterated that "[w]here a statutory provision pertaining to a given subject matter provides for the matter to be determined `notwithstanding' or `without regard to' any other law, the provision affords agency officials `sole and exclusive discretion' to determine that subject matter." Id. (citing AFGE, Local 3295, 47 FLRA 884 (1993), aff'd sub nom. AFGE, Local 3295 v. FLRA, 46 F.3d 73 (D.C. Cir. 1995); Illinois National Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988); Colorado Nurses Assoc. v. FLRA, 851 F.2d 1486, 1489 (D.C. Cir. 1988).

      Moreover, in finding the above we also reject two additional arguments raised by the Petitioner. First, we do not agree with the Petitioner that the failure of Congress to include language similar to that of 10 U.S.C. § 461 mandates a finding that Congress did not confer unfettered discretion upon the Under Secretary in setting terms and conditions of employment for the screeners. There is no support for the argument that "sole and exclusive discretion" requires the use of the language set out at 10 U.S.C. § 461. Second, given the above, we conclude that the RD correctly found that the Under Secretary has sole and exclusive discretion over the terms and conditions of employment of security screeners. In exercising this discretion, the Under Secretary determined that the Agency will not bargain over the terms and conditions of employment of screener personnel. As such, since the Under Secretary has the unfettered discretion to set terms and conditions of employment, and has chosen to do so, the Petitioner's attempt to override that discretion by seeking to be formally recognized as the exclusive representative of these employees would unlawfully usurp the Under Secretary's authority as it would be contrary to the actions taken by the Under Secretary pursuant to 49 U.S.C. § 44935 Note.

      Moreover, we also agree with the RD that, although not specifically raised by the Petitioner here, § 7111 of the Statute allows for the exclusive recognition of a labor organization and that an exclusively recognized labor organization by definition is an entity that has the right to deal with an agency over "grievances and conditions of employment." See 5 U.S.C. § 7103(a)(4) (emphasis added); RD's Decision at 26-27. As the Under Secretary has exercised his discretion to preclude screener personnel from seeking an exclusive representative under the terms of § 7111, the Petitioner is now precluded from, and has not established how it can avail itself of that same statutory process for seeking exclusive representative status and the benefits that such status would afford it. See, e.g., Local 2953, 730 F.2d at 1538.

      In this connection, we disagree with the Petitioner to the extent it claims that it has the ability to utilize the procedures established in § 7111 to become an exclusive representative for purposes other than the negotiation of collective bargaining agreements. The process established in § 7111 permits employees to obtain an exclusive representative "for the purpose of collective bargaining." 5 U.S.C. § 7111(b)(1)(A). However, it is clear that a union obtaining exclusive representative status under § 7111 obtains the full range of exclusive representative rights established by chapter 71 of title 5, not just the ability to engage in the collective bargaining process leading up to a collective bargaining agreement. For example, only exclusive representatives are accorded rights under § 7114(b) to be present at certain interactions between bargaining unit employees and agency representatives. Similarly, § 7117 provides only exclusive representatives with the ability to file negotiability appeals. Under § 7114(b)(4), only exclusive representatives have certain rights to information provided for by chapter 71 of title 5. And, of course, only exclusive representatives have the right to engage in collective bargaining for the purposes of executing a collective bargaining agreement, under §§ 7114(a)(1) and 7103(a)(12). Thus, the process established by § 7111 to accord unions exclusive representative status is designed to provide an exclusive representative with all the rights that accrue to an exclusive representative, not just a more limited right to engage only in the collective bargaining process leading up to a collective bargaining agreement.

      This is consistent with Authority precedent that has found that the term "collective bargaining" has a broader meaning that just encompassing negotiations. For instance, in Commander Naval Air Pacific, San Diego, Ca., and Naval Air Station Whidbey Island, Oak Harbor, Wa., 41 FLRA 662, 668 (1991) the Authority stated:

[T]he term "collective bargaining" encompasses "the process wherein the agency and the exclusive representative are engaged in the performance of their mutual obligation to bargain concerning the conditions of employment affecting unit employees." 38 FLRA at 519 (emphasis in original). We also concluded that collective bargaining encompasses bargaining, administration of a collective bargaining agreement, third-party dispute resolution procedures, the processing of grievances and cases before the Authority, and other labor-management [ v59 p429 ] activities that affect unit employees' conditions of employment or a union's status as exclusive representative.

Based on the above, we find that the procedures in § 7111 are designed to grant unions exclusive representative status for the full range of rights and responsibilities accorded an exclusive representative by chapter 71 of title 5.

      Moreover, we also agree with the RD that "[t]here is no evidence of Congressional intent to confer on the Authority the power to determine an appropriate unit and to conduct an election for any purpose other than to determine a representative for collective bargaining" such as is being sought here by the Petitioner. RD's Decision at 26. Nor is there any evidence in the legislative history of the ATSA that Congress expressed any intent to create some sort of hybrid exclusive representative in this case. Therefore, since the Under Secretary determined that screener personnel do not have the right to "engage in collective bargaining or be represented for the purpose of engaging in collective bargaining," we agree with the RD that he is "without authority under section 7111(b)(1)(A) of the Statute to conduct an election unless the purpose of the representation petition is to determine whether the employees wish to be represented for the purpose of collective bargaining." RD's Decision at 27.

      Even if we were to agree that a union could utilize the procedures encompassed by § 7111 to become recognized as a kind of hybrid exclusive representative having less than the full rights accorded by chapter 71 of title 5, we find that the Under Secretary's exercise of his sole and exclusive discretion precludes such an outcome in this case. As already noted, supra, the term "collective bargaining" addresses the full array of representational activities by an exclusive representative. As such, we find no support for the argument that the Under Secretary meant to permit the creation or recognition of an exclusive representative having less than the full rights accorded to exclusive representatives under chapter 71 of title 5. Rather, based on the above, the Under Secretary's action precludes the recognition of an exclusive representative for any and all representational activity permitted by chapter 71 of title 5.

      Finally, Congress has provided unions with something less than the full rights accorded to exclusive representatives under § 7111, but has chosen to provide such rights in only two instances: national consultation rights under § 7113(a), provided there is not an exclusive representative on an agency-wide basis; and dues withholding under § 7115(c)(1), which permits a union, where there is no exclusive representative already in place, to negotiate with an agency over dues withholding procedures. Absent any expression of Congressional intent to create something less than full and exclusive recognition for screener personnel under § 7111, we have no statutory authority to do so at the request of a Petitioner willing to accept something less than the full range of collective bargaining provided under the Statute.

2.     The Legislative History Indicates That TSA Screeners Have Collective Bargaining Rights Only at the Discretion of the Under Secretary [n6] 

      The Petitioner also contends that the legislative history of the ATSA indicates that Congress intended for TSA security screeners to enjoy collective bargaining rights. However, upon review we find that the Petitioner's argument is unpersuasive.

      In this regard, we have looked at the legislative history provided by the Petitioner. We note that when read in context, the cited language expresses the perception that private security screeners had not done an adequate job in providing security rather than implying that under the ATSA screeners would be unequivocally allowed to elect an exclusive representative. Moreover, the language cited by the Petitioner also indicates that at least one legislator acknowledged that under the ATSA the Under Secretary would retain discretion over the right to engage in collective bargaining. In this respect, the Petitioner cites to the statement of Representative Schakowsky who, in talking about the screener personnel, stated:

We do not want those critical workers to be given second-class status when it comes to employee benefits and rights. We must attract the most qualified people possible to fulfill the role of protecting the flying public. There should be no question that they deserve the same treatment as their fellow federal employees. (Cong. Rec. H8313 [daily ed. Nov. 16, 2001] (statement of Rep. Schakowsky. [ v59 p430 ]

However, what the Petitioner fails to mention is that immediately prior to this statement, Representative Schakowsky stated:

However, I continue to be concerned that we have left the Secretary of Transportation with a great deal of discretion as to whether those new public employees will enjoy the same employment benefits and protections as other federal workers. While we agree that these federal law enforcement employees will not have the right to strike, it is my understanding that the Secretary is given the authority to determine whether they can join a union; participate in the Federal Employees Health Benefit Plan and retirement options; and be covered by non- discrimination, health and safety, and whistleblower laws. (emphasis added).

Id. See also RD's Decision at 11.

      Additionally, unlike other areas in which the House Conference Committee expressed a view as to how the Under Secretary should exercise his discretion (H.R. Conf. Rep. No. 107-296, at 64 (2001)), no expression was made in the report about labor relations. Rather, the House Conference Committee stated "the Secretary should also ensure that screeners have access to Federal health, life insurance, and retirement benefits, as well as workers' compensation benefits. The Committee believes that screening personnel must also be given whistleblower protections so that screeners may report security conditions without fear of reprisal." Id.

      Accordingly, after reviewing the RD's decision and the legislative history provided by the Petitioner, we conclude that the legislative history of the ATSA does not undermine the plain language of 49 U.S.C. § 44935, Note, which leaves unfettered discretion to the Under Secretary to determine the terms and conditions of employment for screener personnel in the TSA.

3.     The Petitioner's Constitutional Issues Are Not Properly Before the Authority

      In its final argument, the Petitioner claims that the ATSA as interpreted by the RD would deny employees both their First Amendment right to assembly, free speech and association and their Fifth Amendment right to equal protection. Application at 11-12. For the following reason, we will not consider the Petitioner's argument.

      The Constitutional issues raised by the Petitioner are claimed to be based solely on the RD's alleged unconstitutional interpretation of the ATSA. However, we note that the RD's interpretation is consistent with the same interpretation offered by the TSA in its Agency Response to Election Petition. See Agency Response to Election Petition at 6-8 (January 9, 2003). In its subsequent briefs, the Petitioner failed to raise these Constitutional claims to the RD even though the Agency's submissions should have placed it on notice that the RD certainly could determine that the ATSA left the Under Secretary with unfettered discretion to determine the terms and conditions of employment of screener personnel.

      As "an application may not raise any issue or rely on any facts not timely presented to the . . . Regional Director" the Authority is precluded from reviewing these Constitutional issues. 5 C.F.R. § 2422.31(b). See also 5 C.F.R. § 2429.5 which states that the Authority will not consider any issue which was not presented in the proceedings before the Regional Director; See, e.g., Soc. Sec. Admin. Headquarters, Balt., Md., 57 FLRA 459 (2001) (Authority would not consider union's constitutional due process argument under § 2429.5 where there was no evidence that it had been raised before the arbitrator); United States Dep't of Def. Educ. Activity, Arlington, Va., 56 FLRA 985 (2000) (union's claim that an award was contrary to law, including a claim that the award violated the Appropriations Clause of the United States Constitution, Article 1, Section 9, Clause 7, was barred by § 2429.5 because they should have been raised before the arbitrator). Accordingly, the Authority will not address the Petitioner's Constitutional claims.

V.     Order

      For the reasons stated above, we affirm the RD's Decision and Order dismissing the petitions.


File 1: Authority's Decision in 59 FLRA No. 63
File 2: Opinion of Member Pope


Footnote # 1 for 59 FLRA No. 63 - Authority's Decision

   Member Pope's separate opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 59 FLRA No. 63 - Authority's Decision

   Pub. L. 107-71, Title I, § 111(d), November 19, 2001, 115 Stat. 620 was codified as 49 U.S.C. § 44935, Note.


Footnote # 3 for 59 FLRA No. 63 - Authority's Decision

   The Petitioner notes that under the "traditional equal protection test" the "[F]ederal government is given wide latitude to enact legislation affecting a classification which is presumed valid and will be upheld if it is found it is rationally related to a proper constitutionally permissive interest . . . [as long as] the legislation [is not] invidious, wholly arbitrary or capricious." Application at 12 (citing Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911); United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980)).


Footnote # 4 for 59 FLRA No. 63 - Authority's Decision

   The Agency also "incorporates by reference all of the arguments and authorities contained in its submissions to the Regional Director[.]" Opposition at 2. While the Authority has reviewed these arguments, these arguments will not be set forth separately.


Footnote # 5 for 59 FLRA No. 63 - Authority's Decision

   Section 2422.31(c) specifically states:

      The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:

(1)     The decision raises an issue for which there is an absence of precedent;
(2)     Established law or policy warrants reconsideration; or
(3)     There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.

Footnote # 6 for 59 FLRA No. 63 - Authority's Decision <