In
this case, the Board must decide whether to assert jurisdiction over
Firstline Transportation Security, Inc. (the Employer), an Ohio-based
private company that provides passenger and baggage screening services
at the Kansas City International Airport, in Kansas City, Missouri,
pursuant to a contract with the Transportation Security Administration
(TSA). The issue concerns
the intersection of two statutes: the National Labor Relations Act
(the Act), and the Aviation and Transportation Security Act (ATSA).
The stated purposes of the Act are to encourage the practice
and procedure of collective bargaining and protect employee freedom of
choice in deciding whether they wish to be represented for the
purposes of collective bargaining and by whom.
The stated purpose of the ATSA
is to improve aviation security.
On
May 27, 2005, the Regional Director for Region 17 issued a Decision
and Direction of Election in which he determined that the Employer is
subject to the Board’s jurisdiction.
Thereafter, in accordance with Section 102.67 of the Board’s
Rules and Regulations, the Employer filed a timely request for review.
While the Employer stipulated that it meets both the definitional
and monetary jurisdictional requirements under
the Board’s decision in Management
Training Corp.,
it
contended that the Regional Director erred in asserting jurisdiction
over it because the Board is statutorily barred from doing so
by the TSA’s Under Secretary James Loy’s determination that
Federally-employed screeners are not entitled to engage in collective
bargaining. Alternatively,
the Employer argued that the Board should decline to assert
jurisdiction in the interest of national security.
The election was conducted
as scheduled on June 23, 2005, and the ballots were impounded pending
the Board’s decision. By
Order dated June 30, 2005, the Board granted the Employer’s request
for review.
On July 7, 2005, the Board issued a Notice and Invitation to
File Briefs. On July 8,
2005, the Board’s acting solicitor wrote to the TSA’s chief
counsel to solicit the TSA’s views on the case.
The Employer and the
Petitioner filed briefs on review.
Eight amici curiae also filed briefs.[5]
The Employer and Petitioner subsequently filed responses to the
amici curiae briefs. The
TSA submitted a statement and a clarification to its statement.
Having
carefully considered the entire record in this proceeding, including
the briefs on review, the amici curiae briefs, the response briefs,
and the statement and clarification of the TSA, we conclude that we
should assert jurisdiction over the Employer.
We find that the Board is not statutorily barred from
asserting jurisdiction over the Employer by Under Secretary Loy’s
determination that Federally-employed screeners are not entitled to
engage in collective bargaining.
Further, in accordance with a long line of Board precedent, we
do not believe that the Board should, in this case, decline to assert
jurisdiction in the interest of national security.
Consequently,
we affirm the Regional Director’s decision for the reasons set forth
below.
i.
A. Relevant
Statutory Provisions
In response to the terrorist
attack on September 11, 2001, Congress passed the ATSA, making airport
security a direct Federal responsibility and creating the TSA as an
entity within the Department of Transportation.
See 49 U.S.C. §114. Congress
provided that the head of the TSA, the Under Secretary of
Transportation for Security, would be responsible for the security
screening of all passengers and property carried aboard passenger
aircraft, and for the hiring, training, and employment standards of
security screening personnel. The
ATSA also provided that Federal Government employees would perform the
actual work of screening passengers and property.
ATSA Section 44901(a) states:
(a)
In general.—The Under
Secretary of Transportation for Security shall provide for the
screening of all passengers and property, including United States
mail, cargo, carry-on and checked baggage, and other articles, that
will be carried aboard a passenger aircraft operated by an air carrier
or foreign air carrier in air transportation or intrastate air
transportation. In the
case of flights and flight segments originating in the United States,
the screening shall take place before boarding and shall be carried
out by a Federal Government employee (as defined in section 2105 of
title 5, United States Code), except as otherwise provided in section
44919 or 44920 and except for identifying
passengers and baggage for screening under the CAPPS and known shipper
programs and conducting positive bag-match programs.
Congress also provided that
the Under Secretary could contract with a “qualified private
screening company” to perform screening functions pursuant to two
different sections of the ATSA. First,
Section 44919, authorized the TSA to establish a 2-year pilot program
known as the “PP5 Pilot Program,” at five airports.
Second, Section 44920 provided that, 3 years following the
enactment of the ATSA, the TSA could establish an “opt-out”
program allowing any airport nationwide to contract with a private
screening company.
Section 44935 sets forth
employment and training standards for security screeners employed by
the Federal Government, and gives the head of the TSA the authority to
establish programs for the hiring and training of such personnel.
The ATSA applies these standards to private contractors hired
under the pilot and “opt-out” programs.
Included at Section 44935(i) is a prohibition of the right to
strike by all individuals employed in screening positions.
This provision states:
(i) Limitation
on right to strike.—An individual that screens passengers or
property, or both, at an airport under this section may not
participate in a strike, or assert the right to strike, against the
person (including a governmental entity) employing such individual to
perform such screening.
Further, the annotation to
Section 44935 (also referred to as the “Note”) states the
following:
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 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.
In November 2002, Congress
passed the Homeland Security Act, 6 U.S.C. § 111, creating the
Department of Homeland Security as an executive department and
transferring the TSA from the Department of Transportation to the
Department of Homeland Security.
On January 8, 2003, Admiral James
Loy, the TSA’s Under Secretary, issued a memorandum denying
collective-bargaining rights and the right to representation to
security screeners employed by the TSA.
In its entirety, the Memorandum states:
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.
On November 4, 2003, the
Federal Labor Relations Authority (FLRA) upheld Under Secretary
Loy’s determination that Federal security screeners have no
collective-bargaining or representational rights.
U.S.
Department of Homeland Security, Border & Transportation
Security Directorate, Transportation Security Administration, 59
FLRA 423 (2003).
B. Facts
Kansas City
International
Airport
is one of the five airports chosen by the TSA to contract with private
companies to perform passenger and baggage screening operations
pursuant to the PP5 pilot program.[11]
In 2004, both the United Steelworkers of America and the
International Association of Machinists and Aerospace Workers
petitioned to represent the Employer’s screening employees at the
airport. The Employer did
not contest the Board’s assertion of jurisdiction at that time but
did argue that its employees were guards and therefore could not be
represented by the Steelworkers or Machinists consistent with Section
9(b)(3) of the Act. The
Regional Director agreed with the Employer and dismissed the
petitions. The Board
subsequently denied the Machinists’ request for review of the
Regional Director’s decision.
In 2005, the Petitioner,
International Union, Security, Police and Fire Professionals of
America, filed the instant petition seeking to represent the
Employer’s screeners and lead screeners performing guard duties.
The Petitioner is a guards-only union.
The Employer challenged the petition.
At a hearing, the Employer acknowledged
that it meets the Board’s statutory and discretionary jurisdictional
standards; nevertheless, it contended that it was not subject to the
Board’s jurisdiction. The
Employer’s argument was twofold.
First, it asserted that the Board is statutorily barred
from asserting jurisdiction by Under Secretary Loy’s determination
that Federally-employed screeners are not entitled to engage in
collective bargaining.
Second, the Employer argued that even if the ATSA’s
provisions do not specifically preclude the Board from asserting
jurisdiction, the Board should decline to assert jurisdiction in the
interest of national security.
ii.
A. The
TSA’s Interpretation of the ATSA
We begin with the familiar
canon of statutory construction that “the starting point for
interpreting a statute is the language of the statute itself.” Consumer
Product Safety Commission v. GTE Sylvania, Inc., 447
U.S.
102, 108 (1980). It is
undisputed that the ATSA is silent when it comes to the
collective-bargaining rights of any group of employees.
The statute does not provide for collective-bargaining rights
for any employees, private or Federal, and similarly it does not
specifically prohibit collective bargaining.
Rather, it is the Under
Secretary’s Memorandum (Memorandum) that deals with
collective-bargaining rights and prohibits screener employees from
engaging in collective bargaining.
The Employer and various amici curiae contend that the
Memorandum applies to both private and Federally-employed screeners.
The Petitioner and other amici curiae contend that it only
applies to Federally-employed screeners.
Nothing on the Memorandum’s face answers the question.
In issuing the Memorandum,
the Under Secretary relied exclusively on the authority vested in him
by the annotation to Section 44935.
Consequently, we must examine the annotation to Section 44935
to determine if it vests the Under Secretary with authority to “set
the terms and conditions of employment” of screeners who work for
private employers. Only
if it does so can the Memorandum legitimately be read to apply to
privately-employed screeners.
According to the TSA, the
annotation to Section 44935 applies only to security screeners
employed by the TSA and not to privately-employed security screeners
and, therefore, does not prohibit privately-employed screeners from
engaging in collective bargaining.
In the statement the TSA
filed with the Board, the TSA wrote:
Although aviation security
screeners employed by TSA are statutorily barred from engaging in
mandatory collective bargaining, see §111(d) of the Aviation
Transportation and Security Act of 2001, P.L. 107-71, 115 Stat. 597,
codified at 49 U.S.C. § 44935 Note, it is the TSA’s position that
this provision does not extend to aviation screeners employed by
qualified screening companies. Therefore,
§ 111(d) does not prohibit privately-employed screeners from engaging
in collective bargaining.
Given this interpretation,
the Memorandum issued by the Under Secretary cannot apply to privately
employed security screeners because of a lack of statutory
underpinning. The Under
Secretary only has the statutory authority to “fix the
compensation” and the “terms and conditions of employment” of
Federally-employed screeners and can consequently use that power to
prohibit them from being represented for the purposes of collective
bargaining. The
annotation does not provide the Under Secretary the statutory
authority to prohibit private screeners from being represented for the
purposes of collective bargaining, even though those individuals carry
out the same security-screening function as Federally-employed
screeners.
Further, after it filed its
statement with the Board, the TSA filed a clarification.
This clarification does not call into question the TSA’s
first statement interpreting the annotation to Section 44935.
In the clarification, the TSA called the Board’s attention to
Section 108 of the ATSA. That
section includes two provisions that relate to privately-employed
security screeners: 49 U.S.C. § 44919(f), for pilot program airports,
and 44920(c), for “opt-out” airports, both of which require that a
private screening company “only employ individuals to provide such
services who meet all the requirements of this chapter applicable to
Federal Government personnel who perform screening services at
airports.” The
“requirements” applicable to Federal Government personnel who
perform screening services at airports are the enumerated employment
and training requirements set out in Sections 44935(e) through (j).
They concern things such as citizenship, education
qualifications, English proficiency, test scores, background checks,
and length of training. In
creating the PP5 program and the “opt-out” program Congress wanted
to make sure that all screeners were subject to the same standards and
training requirements.
These requirements do not
relate to labor relations or collective bargaining.
As mentioned above, collective bargaining is not mentioned
anywhere in the ATSA and therefore it cannot be a “requirement” of
the ATSA applicable to Federal Government personnel who perform
screening services. The
decision to bar Federally-employed screeners from bargaining
collectively was a policy decision made by the Under Secretary.
While he was empowered to make the determination because of the
authority vested in him by the ATSA, the ban is not a
“requirement” of the ATSA.
TSA publications are
consistent with the TSA’s interpretation of the annotation to
Section 44935. They
reiterate that collective bargaining by privately-employed screeners
is “a matter between those screeners and their employer.”
As noted by the Regional Director in his Decision and Direction
of Election, the TSA’s website page
dealing with frequently-asked questions about the private contracting
of security-screening functions contains the following answer, in
response to the question of what the TSA’s policy is regarding
private screeners’ rights to unionization:
A: It
is TSA policy to allow federal screeners to join any union but to not
allow any union to represent all screeners for the purpose of
collective bargaining. TSA
does not take a position regarding whether screeners employed by
private screening companies may organize their company. This
is a matter between those screeners and their private employer. However,
airport security screeners, private or federal, do not have the right
to strike.
As the Regional Director
also pointed out, in its June 2004 Guidance on Screening Program
Partnership, page 8, under the headline of “Collective
Bargaining,” the TSA states in part: “Federal screeners are not
entitled to engage in collective bargaining with TSA.
TSA is neutral about contract employees of a private firm
seeking to organize themselves for collective bargaining with that
contractor.”
The
TSA was granted intervenor status in
the case of Covenant
Aviation Security, LLC, Case 20–RC–17896.
Covenant Aviation is a private firm providing airport security
screening services at
San Francisco
International
Airport
. The TSA stipulated that
it was not a joint employer with Covenant and it filed a posthearing
brief reiterating that position.
The TSA did not object to the Board’s assertion of
jurisdiction.
Since the TSA is the agency
charged with administering the ATSA, we defer to the TSA’s
interpretation of that statute.
Indeed, its interpretation is our primary reason for rejecting
the Employer’s and amici curiae’s argument that Admiral Loy’s
Memorandum applies to privately employed screeners.
The Board respects other agencies’ interpretations of the
statutes they are charged with implementing. See,
e.g., Exxon
Shipping Co.,
312 NLRB 566, 567 (1993).
In addition to looking to
other agencies on statutory interpretation issues, the Board has
previously looked to the view of other Federal agencies when deciding
whether to assert jurisdiction. In
General Electric Co., 89
NLRB 726, 736 (1950), the Board looked to the Atomic Energy Commission
when deciding whether to exercise jurisdiction over the employer’s
atomic energy plant, which was operated under contract with the Atomic
Energy Commission. The
Commission assented to collective bargaining among the employees
involved in past cases and took no contrary position before the Board
in that case.
Here, while the TSA did not specifically assent to the
Board’s exercise of jurisdiction, it did expressly state that
organizing is a matter between private screeners and their employers,
and expressed no concerns that would constrain the Board in
determining whether to assert jurisdiction.
B. Further
Interpretation of the ATSA
In addition to the TSA’s
interpretation of the annotation to Section 44935, our own analysis of
the ATSA persuades us that the annotation does not extend to screeners
employed by private entities and, as a result, neither does the
Memorandum.
The annotation states: “[T]he Under
Secretary of Transportation for Security may employ, appoint,
discipline, terminate, and fix the compensation, terms, and conditions
of employment of Federal service.”
The key words are “Federal service.”
If the private screeners are also in “Federal service,”
then arguably they could be deemed covered by the Memorandum.
Contrary to the Employer and certain amici curiae, we do not
believe that “Federal service” should be read to encompass
all screener employees.
“Federal service” is synonymous with “Federal employee”
and consequently screeners who are employed by a private screening
company are not members of the “Federal service.”
The drafters of the ATSA
were cognizant of the difference between Federally-employed screeners
and privately-employed screeners.
Consistent therewith, the language of the ATSA recognizes that
there are screeners who are part of the “Federal service” and
screeners who are not. Nothing
in the ATSA suggests that the private-sector screeners should be
treated as Federal-sector screeners.
The language of Section
44935(i), the strike provision (quoted, supra at 2), reflects
Congressional acknowledgement of the two separate groups of screeners
under the ATSA—those in the “Federal service” and those who are
privately employed—and that the limitation on the right to strike
applies to both groups. If
this were not the case, then there would have been no reason to
specifically reference a “governmental entity” as included within
the definition of “person” employing the screener.
Under the Federal Service
Labor Management Relations Statute (FSLMRS), Federal employees do not
have the right to strike.
On the other hand, the right to strike is recognized as a
fundamental right under the Act.
Congress was well aware of this disparity, so it indisputably
denied the right to strike to both Federally- and privately-employed
screeners, deeming it to be incompatible with national security
interests. The reasonable
inference is that Congress knew that, absent legislation,
privately-employed screeners would have the right to strike.
Phrased differently, Congress was aware that privately-employed
screeners are covered by the Act.
Additionally, a fundamental
principle of statutory construction is that statutes are to be read so
as to render all of their provisions meaningful.
Mail Order Assn. of
America
v. Postal Service, 986 F.2d 509, 515 (D.C. Cir. 1993).
If, however, the annotation to Section 44935 were read to apply
to private screeners then a portion of Section 44919(f) (and Sec.
44920 (c)) would be rendered meaningless.
The annotation to Section 44935 concludes with the sentence:
“The Under Secretary shall establish levels of compensation and
other benefits for individuals so employed.”
While the Under Secretary clearly has authority to establish
the salary and benefits for Federally-employed screeners, he does not
have authority to establish the salary and benefits for
privately-employed screeners. Section
44919(f) provides that qualified private-screening companies must
“provide compensation and other benefits to such individuals that
are not less than the level of compensation and other benefits
provided to such Federal Government personnel in accordance with this
chapter.” If the
annotation to Section 44935 applied to private screeners, then the
Under Secretary would have the authority to establish the salary and
benefits for privately employed screeners, contradicting and rendering
meaningless Section 44919(f).
C. Legislative
History
The legislative history of
the annotation to Section 44935 also supports our analysis.
Senator McCain added the annotation to Section 44935 as
an amendment shortly after the bill’s introduction.
The amendment’s purpose was “[t]o authorize the employment,
suspension, and termination of airport passenger security screeners
without regard to the provisions of title 5, United States Code,
otherwise applicable to such employees.” See
147 Cong. Rec. 10,520 (purpose read into the record by the assistant
legislative clerk). Title
5 contains all of the Civil Service provisions governing Federal
employees including the FSLMRS. The
amendment was agreed to without objection and adopted.
Id.
The
stated purpose and lack of objection strongly suggest that the Senate
understood that the annotation provided the Under Secretary with
exclusive authority over the terms and conditions of employment for
Federal airport screeners.
Further, in arguing that the
term “Federal service” in Section 44935 should be read to
encompass all screener employees, the Employer cites to amici curiae
Representative Mica and Former Majority Leader Armey’s discussion of
the ATSA conference report. H.R.
Conf. Rep. No. 107-296 (2001).
Both Representative Mica and Former Majority Leader Armey quote
the following sentence from the report: “The Conferees recognize
that, in order to ensure that Federal screeners are able to provide
the best security possible, the Secretary must be given wide latitude
to determine the terms of employment of screeners.”
Id.
at 64. They contend that
by using the term “Federal screeners,” the Conferees
differentiated between the “pre-9/11” aviation security model,
under which air carriers were responsible for screening passengers,
and the “post-9/11” screening model, under which this function
became the responsibility of the Federal Government.
Nevertheless, Representative
Mica’s and Former Majority Leader Armey’s interpretation of the
conference committee report is ultimately unhelpful in trying to
interpret the words “Federal service” as used in ATSA.
First, while committee reports can be helpful tools for
interpreting statutes, they do not embody the law.
Abourezk v. Reagan,
785 F.2d 1043, 1054 fn. 11 (D.C. Cir. 1986).
Second, the conference report does not directly address the
term “Federal service” as used in Section 44935.
The Employer would have us equate “Federal screeners” with
“Federal service.” While
it is permissible to use a committee report to interpret unclear
language contained in the statute, the Employer’s desired
interpretation would go too far.
In essence, we would have to accept amici curiae’s
interpretation of the words “Federal screeners” in the committee
report and then use that interpretation to interpret the words
“Federal service” in the statute.
This “double interpretation” is almost entirely divorced
from the text of the committee report and statute.
We have been cautioned that we cannot treat the language in a
committee report as a statutory provision and then use statements by
individual representatives to “interpret” that language and give
it the force of law. See Electrical
Workers Local 474 v. NLRB,
814 F.2d 697, 715 (D.C. Cir. 1987).
The Employer’s proposed interpretation does essentially just
that by treating the committee report words “Federal screeners”
the same as the statutory words “Federal service” and then using
the amici curiae’s interpretation to give it the force of law.
iii.
The Employer and certain
amici curiae argue that even if the Under Secretary’s Memorandum
does not specifically preclude the Board from asserting jurisdiction,
the Board should decline to assert jurisdiction in the interest of
national security. The
Board has been confronted with issues concerning national security and
national defense since its early days.
Our examination of the relevant precedent reveals that for over
60 years, in times of both war and peace, the Board has asserted
jurisdiction over employers and employees that have been involved in
national security and defense. We
can find no case in which our protection of employees’ Section 7
rights had an adverse impact on national security or defense.
Our jurisprudence establishes that with regard to national
security and defense, employee “[s]elf-organization for collective
bargaining is not incompatible with efficient and faithful performance
of duty.” Dravo
Corp., 52 NLRB 322, 327 (1943).
During World War II the
Board exercised jurisdiction innumerable times in the name of national
security and defense. For
example, in Chrysler Corp.,
44 NLRB 881 (1942), the employer manufactured war material for the
U.S. Government. The
petitioner sought to organize the employer’s plant-protection
forces. Plant-protection
employees guarded the employer’s property against espionage, theft,
trespass, and fire and accident hazards. They
enforced safety and disciplinary regulations. They examined packages
leaving and entering the plants. They investigated and reported to the
military authorities occurrences which aroused their suspicion.
The Board remarked that: “The present production of war
materials at the Company’s plants increases the importance of their
work and their responsibilities.”
Id.
884–885. The War
Department issued a directive, making plant-protection employees at
plants producing war materials civilian auxiliaries of the military
police. Under appropriate
Army supervision, the employees were trained and equipped to meet the
additional responsibility placed upon them.
The employer contended that the Board should dismiss the case
on the ground that the organization of plant-protection employees and
their affiliation with the same union which represented production and
maintenance employees, whose activities they watched and guarded,
would materially lessen the efficiency of the former.
The Board found no merit
in the employer’s contention. The
Board stated:
We are mindful of the
increased responsibilities placed upon plant-protection employees in
wartime, but the practices and procedures of collective bargaining are
flexible, and may make full allowance for such added responsibilities.
. . . In any event, the
remedy for inefficiency or willful disregard or neglect of duty on the
part of the plant-protection employees lies implicitly in the power of
the Company to discipline or discharge them and in the power of the
military authority to take all necessary steps to protect the public
interest. We find,
therefore, no reason to deny the request of the Company’s
plant-protection employees to constitute a separate bargaining unit
and to deny them, as such, the right to bargain collectively with
their employer through a representative of their own choosing.
Id.
at 886.
In Budd
Wheel Co., 52 NLRB 666 (1943), the employer manufactured shells
and truck wheels, hubs, drums, and brake parts for the U.S.
Government. The union
sought to represent the employer’s plant protection employees.
The employer advanced numerous reasons why the plant-protection
employees should not be able to organize.
The Board rejected all of the employer’s arguments.
First, the employer contended that the guards were auxiliaries
to the militarized police. The
Board responded: “We have held in numerous cases that this change in
the status of guards, growing out of the war, does not deprive them of
the rights of collective bargaining guaranteed to employees under the
Act. In the instant case,
the Company’s peace-time control over its guards has not been
altered materially.”
Id.
at 669. Second, the
employer contended that it was contrary to public policy, especially
in time of war, to extend the protection of the Act to guards.
The Board responded: “No evidence is offered by the Company
in support of this proposition. The fact that the guards are now
engaged in protecting property of the U.S. Government is not in itself
any reason for denying the rights of collective bargaining to such
employees.”
Id.
at 670. Third, the
employer contended that it would not effectuate the policies of the
Act to require the company to bargain collectively with the guards or
with the union as the representative of the guards.
The Board responded:
The declared policy of the
Act is “to eliminate the causes of certain substantial obstructions
to the free flow of commerce and to mitigate and eliminate these
obstructions when they have occurred.”
Among the obstructions set forth in the Act are “strikes and
other forms of industrial strife or unrest” and “inequality of
bargaining power.” It
can hardly be seriously contended that such obstructions result only
from conflict between production employees and the employer.
Nor do we believe that the war has eliminated all these
obstructions; on the contrary, strife and unrest and inequality of
bargaining power are likely to continue in the absence of collective
bargaining, particularly in the face of self-imposed limitations on
the right to strike and, in the case of militarized guards, the
necessary restrictions imposed by the Government.
Id.
Finally, the employer
contended that it was inconsistent with the prosecution of the war
effort to order it to bargain collectively with its guards.
The Board responded: “In
view of what has been said in answer to preceding contentions, this
argument is unpersuasive. An efficient prosecution of the war effort
demands the preservation of the right to collective bargaining, not
its destruction.”
Id.
In 1945, the Board dealt
directly with the issue of the application of the Act during wartime.
In Bethlehem Steel Co.,
61 NLRB 892 (1945), the employer manufactured structural steel, most
of which was ultimately used in the war effort.
The union sought to represent all guards at the employer’s
Chicago
plant. The employer
contended that the unit of guards would not effectuate the purposes of
the Act. The Board
rejected the employer’s contention.
The Board stated:
We are persuaded that the
unit sought is appropriate and will fully effectuate the policies of
the Act. In reaching this conclusion, we are not unmindful that this
country is at war and the Company is engaged in war production, and we
have fully considered the national welfare. That
steady and unimpeded flow of commerce which the Act is designed to
maintain by the encouragement of the orderly procedures of collective
bargaining is doubly essential in time of war. It
is in keeping with the policies of the Act and it is in the public
interest to foster and protect collective bargaining by guards,
thereby promoting a practice necessary to the amicable settlement of
labor disputes and eliminating obstructions to commerce.
Id.
at 896.
In Rohm
& Haas Co., 60 NLRB 554 (1945), the Board made another
observation about collective bargaining during wartime:
During this war period,
militarized plant-protection employees, to an even greater extent than
other employees engaged in war production, have surrendered their
traditional economic weapons, and submitted to novel restraints upon
their freedom to act in furtherance of their interests as wage
earners. Consequently, their exercise of the right to
self-organization and collective bargaining, guaranteed by the Act to
all employees as a means of eliminating and preventing obstructions to
commerce, assumes particular importance to the national welfare, for
the collective bargaining process is the only orderly and peaceful way
in which such employees can adjust their employment problems. To close
that way would be to create an intolerable threat to war production.
Id.
at 556–557.
In fact, the Board
specifically ruled that the exigencies of World War II required an
expansion, not erosion, of collective-bargaining rights as the best
means for achieving stable labor relations and the free flow of
commerce. In Taylor
Forge & Pipe Works, 58 NLRB 1375, 1378–1379 (1944), the
Board expanded the certification year of the incumbent union
specifically because of “the exigencies of war-time labor
relations.”
After the War, the Supreme
Court issued opinions in two cases that vindicated the Board’s
wartime jurisprudence. See
NLRB v. E.C. Atkins & Co.,
331
U.S.
398 (1947); NLRB v. Jones &
Laughlin Steel Corp., 331
U.S.
416 (1947). The Jones
& Laughlin Court observed that “in this nation, the
statutory rights of citizens are not to be readily cut down on pleas
of military necessity. . . .” 331
U.S.
at 426. In E.C.
Atkins, the Court agreed with the Board that there was no conflict
between the unionization of plant guards on one hand and their loyalty
and efficiency on the other. 331
U.S.
at 404–405.
During the Korean War and
the early years of the “Cold War,” the Board continued to follow
the same practice. In General
Electric Co., 85 NLRB 1316 (1949), the employer produced atomic
energy for the sole use of the Government.
The Board rejected the employer’s contention that due to
national security concerns, the plant patrolmen should not be allowed
to engage in collective bargaining.
Similarly in 1954, the Board
recognized the value of asserting jurisdiction over defense-related
industries because the Act provides mechanisms for enhancing
industrial stability and deterring labor strife.
In Maytag Aircraft Corp.,
110 NLRB 594, 595 (1954), the Board reiterated that it is precisely
because of the potential effect upon the national interest that the
Board should exercise jurisdiction over defense-related contracts.
In Ready
Mixed Concrete & Materials, Inc., 122 NLRB 318, 320 (1958),
the Board determined once and for all that it would best effectuate
the policies of the Act “to assert jurisdiction over all
enterprises, as to which the Board has statutory jurisdiction,
whose operations exert a substantial impact on the national defense,
irrespective of whether the enterprise’s operations satisfy any of
the Board’s other jurisdictional standards.” In
adopting this standard the Board noted its “special responsibility
as a Federal agency to reduce the number of labor disputes which might
have an adverse effect on the Nation’s defense effort.”
Id.
Since that time, the Board
has exercised jurisdiction over innumerable employers whose operations
exert a substantial impact on national defense and security. See,
e.g., Aerospace Corp.,
331 NLRB 561 (2000) (research and development for military
space-related programs); General
Security Services Corp., 323 NLRB 540 (1997), enf. denied on other
grounds 162 F.3d 437 (6th Cir. 1998) (security services at Federal
courthouses); Old Dominion
Security, 289 NLRB 81 (1988) (security services for U.S. Navy); Mason
& Hanger Co., 270 NLRB 383 (1984), enfd. 789 F.2d 1465 (10th
Cir. 1986) (security services at Los Alamos National Laboratories); McDonnell
Douglas Corp., 240 NLRB 794 (1979) (manufacturer of fighter planes
and various types of missiles); Champlain
Security Services, 243 NLRB 755 (1979) (security services for the
U.S. Coast Guard); Beiser
Aviation Corp., 135 NLRB 399 (1962) (pilot training and aircraft
maintenance for military); Plumbers
Local 44 (MacDonald-Scott & Associates), 131 NLRB 787 (1961)
(construct and install Titan missile facilities); Texas-Zinc
Minerals Corp., 126 NLRB 603 (1960) (operate uranium concentrate
mill pursuant to a contract with the Atomic Energy Commission).
This practice has continued after September 11, 2001. See,
e.g., Baywatch Security and
Investigations, Inc., 337 NLRB No. 70 (2001) (not reported in
Board volume) (security services to the U.S. Department of the
Army’s Longhorn Army Ammunition Plant).
As the foregoing precedent
establishes, the Board has not asserted national security or defense
as a reason to deny employees their Section 7 rights to organize and
bargain collectively. Of
course, we recognize the new challenges that living in a
post-September 11 world present, and we recognize, as our dissenting
colleague points out, that in none of the above-cited cases did the
employees have duties indistinguishable from Federal employees who
lacked collective-bargaining rights; however, we do not think that
these facts fatally undermine the Board’s reasoning and warrant a
wholesale rejection of over 60 years worth of precedent.
The Employer also argues
that there should be no disparity between screeners in the Federal
service and those in private employment.
This contention merits two different responses.
First, allowing private screeners to be represented for the
purposes of collective bargaining will not create disparate security
standards among the nation’s airports.
As confirmed in the record, the security standards for
screening operations are entirely at the direction of the TSA and will
remain so. The minimum
employment standards, equipment used, and procedures and protocols
followed are identical between the two groups.
In 2004, as required by law, the TSA analyzed the pilot program
to determine if the private screeners delivered the same level of
security and customer service as Federal screeners. The
TSA hired independent consultants to conduct a study, and it was
determined that the private screeners were able to meet the same
standards.
Second, it is undeniable
that if private sector employees are allowed to organize and bargain
collectively, there may
well be disparities in the terms of employment between that group and
TSA employees. Such
disparities, however, are consistent with the design of the PP5 pilot
program and the “opt-out” program.
We recognize that by Federalizing airport security screening
Congress intended to fundamentally change the way security screening
was done across the nation. However,
Congress itself initially did not agree how to best accomplish this
goal. The Senate thought
that security screening should be carried out by Federal employees and
the House thought that screening should be carried out by deputized
private-sector employees.
Pursuant to a subsequent compromise, the bulk of airport
security screening was Federalized but the PP5 pilot program and the
“opt-out” programs were created.
These programs were created to allow Congress to compare the
efficacy of Federal screening and private screening with the ultimate
goal being to expand the “opt-out” program if it was successful.
Further, the Employer argues
that security and safety concerns would not be fully provided for in a
union setting. However,
we do not view the assertion of jurisdiction as incompatible with the
maintenance of national security requirements.
Unionism and collective bargaining are capable of adjustments
to accommodate the special functions of the security screeners, and
the regulations set forth in the ATSA already limit the
collective-bargaining rights of security screeners. Thus,
the Employer’s employees are forbidden from striking and the
Employer and the Petitioner will not be able to bargain over many
mandatory subjects that would normally be the subject of bargaining in
an unregulated private industry.
Additionally, other airport/airline personnel including pilots,
flight attendants, airline mechanics, and others in the airline
industry who have critical security responsibilities have the right to
bargain collectively under the Railway Labor Act.
Consequently, any argument by the Employer about the potential
detrimental effects of unionization is speculative.
The Supreme Court’s conclusion in Jones
and Laughlin is just as applicable to this case:
Union membership and
collective bargaining are capable of being molded to fit the special
responsibilities of deputized plant guards and we cannot assume, as a
proposition of law, that they will not be so molded.
If there is any danger that particular deputized guards may not
faithfully perform their obligations to the public, the remedy is to
be found other than in the wholesale denial to all deputized guards of
their statutory right to join unions and to choose freely their
bargaining agents. 331
U.S.
at 430.
Finally, prudence cautions
against crafting, as some amici curiae advocate, a broad and
ill-defined national security exception to the Board’s jurisdiction.
Such an exception would threaten the general application of the
Act to Government contractors, depriving many classifications of
workers the statutory protection they have long been afforded.
Ultimately, of course, it is within the
province
of
Congress
to restrict the jurisdiction of the Board with respect to certain
classifications of employees in the interests of national security.
We perceive no such Congressional limitation in the ATSA.
iv.
Relying on Admiral Loy’s
Memorandum, our dissenting colleague contends that the Government
official entrusted with ultimate responsibility for airport security
has determined that the security screening function that is performed
by privately-employed screeners is incompatible with unionization and
collective bargaining. He
would defer to that determination. We
disagree for two reasons.
First, by concentrating only
on the function of the employees at issue, our colleague ignores the
major difference between the two groups of employees: that is, one
group is Federally employed and the other (much smaller) group is
privately employed. While
we recognize that all screeners perform the same function and are
subject to the same employment standards under the ATSA, the privately
employed employees have additional rights under the Act, including the
right to organize and bargain collectively, by virtue of their private
employment status and irrespective of their function.
That is, as our colleague acknowledges, the Employer here is an
employer within the meaning of Section 2(2) of the Act, and the
employees here are employees within the meaning of Section 2(3) of the
Act. Congress did not
indicate in the ATSA that it wished to deprive private employees of
any labor law rights—except the right to strike (which it withheld
from all screeners).
It is these rights that are
at issue in this dispute. Therefore,
in order to determine whether to assert jurisdiction, we must look
beyond function and examine how the employees at issue fit within our
statutory scheme. When we
do, it becomes apparent that the Employer’s relationship to its
employees is similar to the multitude of other relationships between
Government contractors and their employees that are currently governed
by the Act.
Second, as discussed more
fully above, the ATSA does not give the Under Secretary the authority
to divest privately employed screeners of their right to engage in
collective bargaining with their respective employers—the Under
Secretary only has that authority with regard to Federally-employed
screeners. Thus, as our
colleague acknowledges, despite the Under Secretary’s determination
regarding Federally-employed screeners, the TSA has taken an explicit
position of neutrality when it comes to the rights of private
screeners. The TSA has
made no pronouncements seeking to eliminate private screeners from the
protections of the Act. Instead,
the TSA has specifically stated that organizing is a matter between
screeners and private employers.
Specifically presented with the opportunity to do so in this
case, the TSA did not ask us to decline to assert jurisdiction in the
interest of national security. Absent
such a request, we will apply the Act to the Employer, as we do to
other employers that fall within our jurisdiction.
Our colleague asserts that
the TSA has appropriately restrained itself from telling the Board how
to interpret and apply the Act and that the Board remains free to give
effect to the Under Secretary’s determination in the private sector,
where the Board (not the TSA) has authority. However, we find that
doing so would be a derogation of our statutory duty to administer and
enforce the Act. As
explained, Congress deliberately created a statutory regime that
provides for some security screeners to be employed in the private
sector. Further, since
private-sector employees enjoy the right to bargain collectively under
the Act, Congress presumably knew that private screeners would
be entitled to the protections of the Act.
If Congress wanted to exclude private screeners from the
Act’s coverage, it could, and presumably would, have done so.
Contrary to our colleague’s contention, however, Congress has
not acted in this sphere. Absent
both a clear statement of Congressional intent and a clear statement
from the TSA that would support our refusal to exercise jurisdiction,
we will not create a nonstatutory, policy-based exemption for private
screeners. We see no
compelling reason for us to divest private screeners from the
protections of the Act. Rather,
the Employer’s employees should be able to avail themselves of the
rights afforded them under the Act.
In sum, contrary to our colleague’s view, we find that we
should leave the policy decision to Congress, since the issue is
essentially not one of Federal labor
policy, but of national-security policy.
v.
The Employer and the amici
curiae advance two primary reasons why we should decline to assert
jurisdiction. The first
reason is based on the ATSA and its legislative history and the second
reason is grounded in policy considerations.
As demonstrated above, neither of these reasons withstands
scrutiny. Consequently, we
affirm the Regional Director’s decision for the reasons stated
herein and remand this case to him for further appropriate
action.
ORDER
The
Regional Director’s Decision and Direction of Election is affirmed.
This proceeding is remanded to the Regional Director for
further appropriate action consistent with this Order.
Dated,
Washington
,
D.C.
June 28, 2006
______________________________________
Robert
J. Battista,
Chairman
______________________________________
Wilma
B. Liebman,
Member
______________________________________
Peter
C. Schaumber,
Member
______________________________________
Dennis
P. Walsh,
Member
(seal)
National Labor
Relations Board
Member
Kirsanow, dissenting.
I agree with my colleagues
that the Board is not statutorily barred from asserting jurisdiction
over private employers of airport security screeners.
As a matter of public policy, however, I would decline to
assert jurisdiction over such employers in the interests of national
security. I would defer
to the finding of the Federal official entrusted with responsibility
over airport security, which is that unionization and collective
bargaining are incompatible with the critical national-security
responsibilities of individuals carrying out the security-screening
function.
Immediately after the
terrorist attacks of September 11, 2001, Congress Federalized airport
security by enacting the Aviation and Transportation Security Act (ATSA),
which created the Transportation Security Administration (TSA).
ATSA authorizes the head of the TSA, inter alia, to “fix the
compensation, terms, and conditions of employment” of Federal
airport security screeners. 49
U.S.C. § 44935 Note. Pursuant
to that authority, Under Secretary of Transportation for Security
James Loy issued the following memorandum:
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.
The Federal Labor Relations
Authority upheld Under Secretary Loy’s determination.
Thus, the Government
official entrusted with ultimate responsibility for airport security
has determined that unionization and collective bargaining are
incompatible with the “critical national security
responsibilities” of “individuals carrying out the security
screening function under [49 U.S.C.] section 44901.”
Individuals carrying out the security-screening function under
Section 44901 are Federal employees; ATSA also provides for
privately-employed security screeners under 49 U.S.C. Sections 44919
and 44920. It is
undisputed, however, and my colleagues acknowledge, that privately
employed screeners and Federally-employed screeners have identical
duties. Both sets of
employees “carry[ ] out the security screening function.”
There is no difference whatsoever between the
security-screening function “under section 44901” and the
security-screening function under Sections 44919 and 44920.
And it is the carrying out of that function
that the Under Secretary has determined to be incompatible with
unionization and collective bargaining.
I would defer to that determination.
I recognize that, when
directly asked whether privately-employed security screeners may
organize, the TSA has taken a position of neutrality.
This is understandable. The
organizational rights of privately-employed security screeners are
governed by the Act, which is administered by this agency, not by the
TSA. Just as the Board
would decline to instruct the TSA in the proper interpretation and
application of the ATSA, so also the TSA has appropriately restrained
itself from telling the Board how to interpret and apply the Act.
Nonetheless, Under Secretary Loy’s determination is that
unionization and collective bargaining are incompatible with the
security-screening function,
which is performed by privately-employed screeners in precisely the
same way as by Federally-employed screeners.
That determination speaks for itself, notwithstanding the
TSA’s official neutrality on an issue outside its jurisdiction.
My colleagues cite numerous
cases, dating from the World War II era to the present, that they say
stand for the proposition that the Board has consistently asserted
jurisdiction over employers involved in national security and defense.
In many of those cases, however, the Board’s jurisdiction was
not even at issue.
In those cases cited by the majority in which a jurisdictional
issue is presented, none presents the unique issue before the Board in
this case: whether to
assert jurisdiction notwithstanding a determination by the responsible
Federal-agency head that the critical national-security function
performed by the affected employees precludes unionization and
collective bargaining.
My colleagues say that
creating a national-security exception will open the floodgates and
potentially “threaten the general application of the Act to
Government contractors.” I
am not advocating a national-security exception potentially applicable
to Government contractors generally.
My position is based on two circumstances never before
presented to the Board and unlikely ever to be presented again:
Federal and private employees performing indistinguishable functions
deemed critical to national security, and a finding by the responsible
agency head that these functions are incompatible with collective
bargaining. Declining
jurisdiction under these unique circumstances would not set the Board
on a slippery slope.
The majority says that I
ignore the fact that the security screeners in this case are privately
employed and therefore possessed of rights under the Act.
They observe that, because Congress prohibited all screeners
(Federal and private) from striking, it can be inferred that Congress
knew that privately-employed screeners would otherwise have that right
as employees covered by the Act.
I do not ignore those facts.
I acknowledge that there is no statutory bar to asserting
jurisdiction here. I
would decline to do so, however, because I would defer to the Under
Secretary’s determination that the screening function and
unionization are incompatible. My
colleagues criticize me for concentrating on the screening function.
They say we must “look beyond function.”
In my view, the Under Secretary’s determination precludes
looking beyond function. This
is not a situation in which national security and Section 7 rights may
be harmonized and reconciled. A
contrary determination has been made.
Thus, although I am deeply mindful of employee rights, in this
highly unusual and perhaps even unique case I cannot accord them
primacy. National
security is the trump card, and it has been played; the Board should
fold its hand.
Additionally, unlike my
colleagues, I would not wait to do so until Congress explicitly
removes privately employed screeners from the Act’s coverage.
Congress has acted. It
vested broad authority over airport security screening in the Under
Secretary. Acting under
that authority, the Under Secretary has found collective bargaining
and the screening function incompatible.
That is sufficient congressional warrant for the Board to
decline jurisdiction here.
In sum, it has been
authoritatively determined that national security precludes extending
organizational rights to Federally-employed airport security
screeners. Such a
determination is outside the expertise of the Board.
Privately-employed screeners perform exactly the same security
function as their Federal counterparts.
Where the TSA has closed the front door, the Board should not
open the back door. The
Section 7 rights of employees are vitally important; the imperatives
of national security are of paramount importance.
I would decline jurisdiction.
Dated,
Washington
,
D.C.
June 28, 2006
______________________________________
Peter
N. Kirsanow,
Member
National Labor
Relations Board
