?The issue is not whether these workers have a right to organize, but whether the NLRB has jurisdiction in this case.?
Passenger and baggage screeners at Kansas City International Airport are part of a national workforce of nearly 50,000 people responsible for making sure the events of Sept. 11, 2001, never happen again.
But the 600 workers at KCI are different from most of their peers around the country in a couple of respects. First, they are private-sector employees, working for a company that has contracted with the federal government. Screeners at only four other U.S. airports have the same designation.
Secondly, they have become a test case for labor-management relations in the post-9/11 era that could affect the rights of workers in thousands of similar jobs.
In late June, the KCI screeners employed by FirstLine Transportation Security Inc. voted in a union-representation election conducted by the National Labor Relations Board. However, the company appealed the decision by Mike McConnell, the NLRB?s regional director in Overland Park, that the agency had the jurisdiction and authority to hold the vote.
The outcome of the vote is unknown. The votes were impounded while the appeal went to the National Labor Relations Board in Washington. That board, the ultimate authority within the NLRB, surprised some labor law observers and alarmed the labor movement when it decided to review the case.
What started as a relatively small matter in Kansas City has spun into a national debate among private companies, unions, members of Congress and law professors over the issues the FirstLine election presents.
The company has argued that the privately employed screeners at KCI should be treated the same as the 45,000 federal screeners, who are not allowed to unionize. If the NLRB finds that the two employee groups are different, then the company contends that, in the interest of national security, the private screeners should not be allowed to form a union.As a result, the notion that private screeners would not be allowed to collectively bargain has some labor law experts concerned, given the hundreds of thousands of workers who currently have union representation and whose duties could be defined as having a national security component. Those jobs could be everything from police officers and firefighters to security guards of federal buildings, federal courthouses and nuclear power plants. ?Even if you think the (Transportation Security Administration) is justified in disallowing unions among its employees, letting the NLRB apply that rule to private-sector workers would be troublesome,? said Joseph Slater, professor at the University of Toledo College of Law. ?It?s a slippery slope to a whole slew of other jobs that could be affected. I hope that will give the board some pause when they review this case.?
After the Sept. 11 attacks, in which suicide hijackers crashed jets into the World Trade Center and the Pentagon, killing more than 3,000, the country was in a panic to protect against further attacks. Congress gave control of all U.S. airport checkpoint screening to the Transportation Security Administration. Congress felt federal employees with more training would do a better job than the private company screening system that allowed the 19 attackers to get on board with box cutters.
Since the law allowed airports to return to private screening in November 2004, KCI and four other airports were put into a two-year pilot program in the fall of 2002 to see if private security screening contractors could meet expectations. So far, only Sioux Falls Regional Airport in South Dakota has applied to seek a private firm, but others may follow.
FirstLine is a subsidiary formed by SMS Holdings in the aftermath of 9/11 to enter the airport security business. It got the KCI contract, worth more than $30 million annually, and intends to bid on other contracts when airports return to private screening contractors.
The only other airport where private screeners have sought a union is San Francisco International Airport. The Service Employees International Union initially represented those workers with no objection from Covenant Aviation Security. However, a rival union emerged that sought to replace the SEIU, which has resulted in a long legal battle during which the San Francisco screeners have lost union representation.
Central to the Kansas City dispute is whether private-sector workers of a company contracted by the Department of Homeland Security are subject to the same restrictions that apply to their federal counterparts.
Congress made it clear that employees of the Transportation Security Administration, which oversees all airport security operations, are prohibited from joining a union and engaging in collective bargaining over work rules and other employment-related matters.The rationale at the time was that the war on terror would fundamentally change the way the U.S. would approach aviation security. It was reasoned that with the urgency to provide protections the Department of Homeland Security could not be hampered by work rules, overtime and scheduling conflicts, and grievances that would arise in typical labor-management relations.
According to a government consultant as well as FirstLine, the screening operations at KCI have been successful. The study commissioned by the government in 2004 cited KCI?s excellence, with shorter waiting periods and more thorough screenings than most of the airports employing government workers.
?The public-private partnership we?ve established in Kansas City just plain works,? said John DeMell, FirstLine?s president. ?It allows the TSA to focus on safety issues and not spend a lot of time on human resources functions. There have been no complaints from the aviation community or the airlines. We?re very proud of what we?ve accomplished, and most of it is due to the hard work of the screeners themselves.?
Despite the security operation?s success at KCI, there nevertheless has been enough discontent among the workers at KCI that three unions have tried to organize the company since FirstLine began its operations nearly three years ago. The Machinists and the United Steelworkers of America were the first two, but the NLRB eventually ruled that only unions representing security guards could organize the screeners.
Last December, the International Union, Security, Police, Fire Professionals of America, or SPFPA, got involved in organizing FirstLine employees, leading to the June vote.
Bob Inman, an organizer for the union, said he noticed a high turnover rate among airport screeners due to the physically demanding nature of the work.
?It seemed like there were a lot of injuries with the lifting of heavy bags and other things,? he said. ?You saw problems with rotator cuffs, carpal tunnel (syndrome), and bad backs. But as for the screeners there, they?re probably among the best around. I think they do a better job than most of the TSA airports.?
Mark Arsenault, who runs a Web site that is a clearinghouse for information and job developments for airport screeners around the country, said most screeners who have contacted him like their jobs. But, he said, screeners get frustrated when inspection procedures dictate that a longer search might be required even as supervisors stress speed.
?A lot of the issues they have are that policies from above seem to change quite frequently,? said Arsenault, whose wife was a federal screener before resigning a couple of months ago. ?That can add to the stress when the workload itself is quite substantial and there?s pressure to inspect so many bags and keep the lines moving. Management has put a premium on them to keep the line moving at the expense of security,? he said.
In a report released last year, the Occupational Safety and Health Administration said injuries and illness among TSA employees were more than three times that of other federal workers, 19.4 percent for TSA workers in fiscal 2003, compared with 5.5 percent for federal workers on the average.
DeMell extols FirstLine?s work injury record, saying 1.2 percent of the workforce is currently out due to injuries.
?That equates to 7 or 8 employees who are on a no-work list due to injury,? said DeMell, whose firm is based in Eastlake, Ohio. ?Our safety record is superior to most other individual airports. We work very closely with the employee, care provider and insurance when it comes to workers? compensation injuries. I would take exception with the union?s assessment.?
FirstLine?s wages and benefits, DeMell said, are equal to or greater than what the federal screeners receive, which is mandated by the Transportation Security Administration.
?Our concern is that this is not a union issue; it?s a safety and security issue,? he said. ?If the DHS and TSA say they cannot have organized employees due to security issues, why should Kansas City or any other airport with private screeners? You have to have the same standards and work rules at every airport.?
Steve Maritas, lead organizer for the SPFPA, said the federal rules should not apply to private-sector workers. The union represents thousands of private guards contracted to work at buildings owned by the Defense Department and the Energy Department, federal courthouses and nuclear facilities.
?The issue is not whether these workers have a right to organize, but whether the NLRB has jurisdiction in this case,? he said. ?If they rule against us, it could have far-reaching implications for all of homeland security. They?re opening a can of worms in which employees guarding any government building are stripped of their rights because of national security.?
Maritas also questioned if the national security argument is accepted in the FirstLine case, what would stop airlines from making the same claim regarding their baggage handlers.
?If they rule against us, it?s going to have far-reaching implications,? he said.
The FirstLine case has drawn widespread attention as legal briefs have been filed on the case by labor unions, a right-to-work organization, another private security company and two congressmen.
Supporting the company?s position is U.S. Rep. John Mica, a Florida Republican who leads the House Aviation Subcommittee.
?The roles of the federal security screener and the privately employed security screener are no different,? Mica?s brief stated.
Backers of the union?s position agree that federal law prohibits the private-sector screeners from striking, but does not prohibit them from forming a union to negotiate work rules, scheduling, seniority and other workplace issues.
?Saying public and private screeners don?t have a right to strike is very different from saying you don?t have a right to collectively bargain or a right to form a union,? said Vincent A. Harrington Jr., an attorney for the Service Employees International Union who filed a brief in the FirstLine case.
The National Right to Work Legal Defense Foundation, a nonprofit group that endorses freedom of choice regarding union membership, also urged the NLRB to declare it does not have jurisdiction in the FirstLine case.
Several union attorneys pointed out that security guards who worked at bomber plants during World War II were allowed to unionize.
?National security is an argument for Congress, not something for the NLRB to consider,? said Jim Coppess, associate general counsel for the AFL-CIO. ?The law (the Aviation and Transportation Security Act) has nothing to do with private-sector screeners. The federal government got through World War II without making these prohibitions, so all this is sort of a little bit strange.?
Slater of the University of Toledo said the federal government established the right to collectively bargain because it was viewed as a way to make work more efficient and safe. He doesn?t see how collective bargaining makes the system less safe.
?The workers who responded on 9/11 ? the police, the firefighters, the emergency medical technicians ? those are some of the most highly unionized occupations in the country,? Slater said. ?The implication that collective bargaining is inconsistent with public safety is flatly contradicted by past experiences.?