Firstline Transportation Security, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 2005

344 N.L.R.B. 1007 (N.L.R.B. 2005)

FIRSTLINE TRANSPORTATION SECURITY
344 NLRB No. 124
1007
Firstline Transportation Security, Inc. and Interna-
tional Union, Security, Police and Fire Profes-
sionals of America (SPFPA). Case 17–RC–12354
June 30, 2005
ORDER GRANTING REVIEW
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND LIEBMAN
Employer’s request for review of the Regional Direc-
tor’s Decision and Direction of Election is granted as it
raises substantial issues warranting review.
These substantial issues are of first impression and in-
clude whether the Board has statutory jurisdiction over
privately employed airport security screeners and, if so,
whether the Board should exercise that jurisdiction.
Our colleague would deny review. Thus, the funda-
mental difference between our position and that of our
colleague is that we think that the issues presented are
worthy of review, and she would foreclose that review.
Given the significance of the issues, and the interests of
other Federal agencies however, we think it important
that the Board hear from those agencies, interested amici,
and further from the parties. Accordingly, we grant re-
view.1
MEMBER LIEBMAN, dissenting.
Citing the debate over the Aviation and Transportation
Security Act (ATSA),1 the statute implicated here, one
commentator has observed:
For decades, the statutory pronouncements of Congress
and most state legislatures have favored collective bar-
gaining in private and public employment. Now this
principle is under attack.
Joseph Slater, Homeland Security vs. Workers’ Rights?
What the Federal Government Should Learn from History
and Experience, and Why, 6 U. Pa. J. Lab. & Emp. L. 295,
297 (2004). Given the current climate of skepticism, even
hostility, toward collective bargaining, the Board’s decision
to grant review in this case is deeply troubling, not least
because it comes from the agency charged with protecting
the institution of collective bargaining in the private sector.
I see no basis for questioning the labor-law rights of airport
screeners employed by private companies, not the Federal
government. And absent “compelling reasons,” the Board
should not grant review.2 Board’s Rules and Regulations,
Section 102.67(c).

1 We decline in this order to engage in substantive debate with our
colleague about the merits of the issues. To do so would suggest that
we have resolved them. Nothing could be further from the truth.
1 49 U.S.C. §114
2 But see Dana Corp., 341 NLRB 1283, 1284 (2004).
Whatever limits Congress may have placed on collec-
tive bargaining by Federal employees of the Transporta-
tion Security Administration (TSA),3 nothing in the
ATSA suggests that Congress intended to deprive pri-
vate-sector screeners of the protection of the National
Labor Relations Act, with the apparent exception of the
right to strike.4 The ATSA provision on which the Em-
ployer relies gives the Under Secretary of Transportation
for Security discretion to fix employment terms and con-
ditions solely for individuals employed in the “Federal
service.”5 It makes no reference to employees of private
screening companies. Nor did the January 8, 2003 de-
termination of TSA’s Under Secretary to deny Federal
screeners the right to engage in collective bargaining or
be represented by a union. Indeed, TSA has stated pub-
licly that it takes no position with respect to collective
bargaining by screeners employed by private companies,
which the agency describes as a “matter between those
screeners and their private employer.”6 It would be ques-
tionable if one Federal agency sought to override the
authority of another, without a clear expression of Con-
gressional intent.7
Nor, contrary to the Employer’s invitation, should the
Board itself create an unprecedented “national security”
exception to its jurisdiction, assuming it has the power to
do so. The Board’s historical approach has been pre-
cisely the opposite, asserting jurisdiction because, for
example, an employer’s operations have a substantial
impact on national defense. See Ready Mixed Concrete

3 See Transportation Security Administration & American Federa-
tion of Government Employees, 59 FLRA 423 (2003).
4 See 49 U.S.C. §44935(i) (“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.”).
Of course, collective bargaining is not dependent on the right to
strike. Employees of the United States Postal Service, for example, are
covered by the NLRA, despite a prohibition against striking. 39 U.S.C.
§§410(b), 1209 (Postal Service Reorganization Act). Public safety
workers across the country, in turn, bargaining collectively under vari-
ous state laws despite the same prohibition. See Slater, supra, 6 U. Pa.
J. Lab. & Emp. L at 334–338 (describing collective bargaining by
police and firefighters, “among the most highly unionized profes-
sions”).
5 49 U.S.C. § 44935, Note.
6 See, e.g., Screening Partnership Program, Frequently Asked
Questions available at TSA’s website:
http://www.tsa.gov/public/interapp/editorial/editorial_1752.xml.
(last visited June 30, 2005).
7 The Supreme Court has repeatedly held that “absent ‘a clearly ex-
pressed congressional intention,’. . . repeals by implication are not
favored.” Branch v. Smith, 538 U.S. 254, 273 (2003) (citations omit-
ted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1008
& Materials, Inc., 122 NLRB 318, 320 (1958).8 As the
Board has explained, applying the Act and its remedies
to such operations “reduce[s] the number of labor dis-
putes which might have an adverse effect on the Nation’s
defense effort.” Id.
Similarly, the Board has rejected arguments that it
should not assert jurisdiction over workers employed at
nuclear energy plants, operated under contract with the
Federal Government, on national security-related
grounds. See, e.g., General Electric Co., 89 NLRB 726,
736 (1950). And during the Second World War, the
Board exercised jurisdiction over militarized plant
guards, with the Supreme Court’s approval.9 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

8 See also, 2 American Bar Association, Section of Labor & Em-
ployment Law, The Developing Labor Law 2157 & fn. 464 (4th ed.
2001) (Patrick Hardin & John E. Higgins Jr., eds.) (collecting cases).
9 The Board already has determined that the workers involved in
this case are guards. See Firstline Transporation Security, Inc., cases
17–RC–12297, –12298. That determination limits their rights under
the Act, relative to other employees: Sec. 9(b)(3) of the Act requires
separate bargaining units for guards and prohibits the Board from certi-
fying a union to represent guards if it admits nonguards to membership.
on one hand and their loyalty and efficiency on the other.
331 U.S. at 404–405.10
To conclude that private security screeners have no
rights under the NLRA would consign them to an em-
ployment no-man’s land, where neither Federal-sector
nor private-sector protections apply. It arguably would
violate the international obligations of the United States
to protect workplace freedom of association.11 And
given the difficult working conditions for screeners in
high-stress jobs, it certainly would not promote harmoni-
ous labor relations and the ultimate goal of improved
airport security. If the Board would not reach such a
harmful result—and I hope it will not12—then there is no
reason to take up the issues presented in the Employer’s
request for review. Instead, consistent with the Board’s
responsibility to administer the NLRA, we should exer-
cise jurisdiction here and let Congress or the courts tell
us if we are wrong.

10 The court observed that the function of guards was “not necessar-
ily inconsistent with organizing and bargaining with the employer” and
that “unionism and collective bargaining are capable of adjustments to
accommodate the special functions of plant guards.” 331 U.S. at 404–
405. The court rejected the assumption that unions would “make de-
mands upon plant guard members or extract concessions from employ-
ers so as to decrease the loyalty and efficiency of the guards.” Id. at
405.
11 The issue has been raised with respect to recent denials of collec-
tive-bargaining rights to federal employees by a complaint now pend-
ing before the Committee on Freedom of Association of the Interna-
tional Labor Organization, a United Nations agency (Case No. 2292,
presented by the American Federation of Government Employees).
12 But cf. IBM Corp., 341 NLRB 1288,1291 (2004) (majority opin-
ion citing “events of September 11, 2001 and their aftermath” as one
basis for overruling precedent that nonunion employees are entitled to
coworker representation in disciplinary interviews).