After a mere nine years in existence, the Transportation Security Administration rivals the DMV and the Postal Service as a played-out comedy cliché. And now the TSA is adding union bureaucracy to the mix. Second-rate standup performers are licking their chops; the rest of us should be much less delighted.
The agency’s head, John Pistole, recently gave its 40,000-plus employees the right to bargain collectively on “non-security employment issues.” Two unions, the American Federation of Government Employees (AFGE) and the National Treasury Employees Union (NTEU), will compete in an election tentatively set to begin March 9.
At first glance, the determination seems reasonable. Pistole argues that unionization could increase morale, and he places strict limits on unions’ power, to prevent them from harming flight security. Unions cannot negotiate the screening procedures that employees follow, the equipment they use, the proficiency tests they take, the job qualifications they must have, or the disciplinary standards they’re subject to. Unions cannot even negotiate compensation, and strikes and slowdowns are prohibited.
In addition, the TSA will operate under a system similar to those found in right-to-work states: While there will be collective bargaining — that is, once a union is elected, it will represent all employees, including those who choose not to join — non-members won’t have to pay dues or fees. This at least partially removes the element of coercion from unionization.
But despite these efforts, several provisions of the determination are problematic. “You’d think it would be hard to find a measure that would create more discomfort for passengers and make them less safe, but this is it,” says Stewart Baker, who was the first assistant secretary for policy in George W. Bush’s Department of Homeland Security (DHS), and who is now author of a book (Skating on Stilts) on airline security and a lawyer with Steptoe & Johnson. “Now there will be management, unions, and passengers, and everybody will be clear on who’s the lowest-ranking of the three.”
For example, while disciplinary standards are not open to bargaining, unions will be able to represent employees who challenge specific disciplinary actions before the administration’s Disciplinary Review Board. Customs and Border Patrol (CBP) — which, unlike the FBI, CIA, and Secret Service, is a federal law-enforcement agency that allows collective bargaining — illustrates the problem with letting unions interfere in disciplinary matters: The agency got into an arbitration war over how it could discipline an employee who literally fell asleep on the job.
Worse, CBP lost. And the websites of NTEU and AFGE are already competing to see which one can provide the longer list of TSA disciplinary actions it has overturned. (Before the determination instituted collective bargaining, TSA agents were nonetheless allowed to join unions if they wanted, and about 13,000 did.)
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Even the seemingly minor areas that the determination makes open to collective bargaining — such as shift bids and transfers — could make the TSA less efficient and flexible. For example, while the determination puts the “deployment of security personnel” off-limits for collective bargaining, “shift bids will be based on seniority, and the new, inexperienced employees will be stuck with the crappy shifts,” notes one GOP aide. “Al-Qaeda might notice this: ‘Hey, the midnight-to-six shift doesn’t seem to have the quickest guys on the line. Let’s run a guy through with contraband and see if they catch him.’” And while the determination grants the government the right to set policy without bargaining in “emergency” situations, that is a hard line to draw, and in everything short of an emergency, the TSA may need union approval to transfer employees.
CBP has faced similar problems. Its union, the NTEU, brags on its website about how it has kept the agency from changing scheduling and overtime policies. These kinds of measures would be even harder on the TSA. “Customs is almost all full-time, whereas TSA is a mix of full- and part-time,” says C. Stewart Verdery, a former assistant secretary for policy and planning at DHS and a founder and partner of Monument Policy Group. “The way flight schedules are, they don’t need full-time people the way other jobs do.”
Further, it’s clear from history that once unions are in place, they try mightily to increase their power, even at great cost. Just as they nearly secured “card check” during the last Congress, they could expand their power to bargain against the TSA in the next Congress, or the Congress after that.
Sen. Roger Wicker (R., Miss.) has cosponsored a bill that would ban collective bargaining in the TSA, but it’s a longshot in the Democratic Senate. “I suspect the Democrats will vote in lockstep with the unions,” says a GOP aide. Let’s hope that airline travel remains as safe as that assumption.
— Robert VerBruggen is a National Review associate editor.