THE CARD, AND LOSE YOUR JOB – TSA’S NEW RULE FOR UNIONS
When Gavello stands outside the Oakland airport with his arms crossed, the sun shines on his shaved head and broad shoulders like the picture on a Mr. Clean bottle. Nor does he make impassioned speeches about getting fired for organizing a union in the terminal behind him. In fact, when he talks about it, a note of wonder creeps into his voice -- a kind of “how can they do this” tone. Gavello still can’t quite accept that his ex-employer, the Federal government, says he doesn’t have what seems such an ordinary right.
And when Dryovage starts talking about his case, she breaks off and apologizes time after time. In the course of a half-hour, she must say “I don’t mean to sound inflammatory” half a dozen times. She too can’t quite get the tone of puzzlement out of her voice, much less the anger behind it. “How can they be responsible for enforcing labor law,” she asks, “and yet say don’t have to obey it?” Like Gavello, it’s hard for her to digest – hearing the time-honored, decades-old, even prosaic process of talking union described in a San Francisco courtroom in the frightening new language of terrorism and threats to national security.
And yet it really shouldn’t be a surprise. Unions have been banned in the Department of Homeland Security for over a year. But now the Federal government, which is responsible for enforcing the union rights of the nation’s workers, has fired a worker for the crime of joining one.
On January 9, 2003, the Bush administration banned collective bargaining for over 40,000 airport screeners. Admiral James Loy, head of the Transportation Security Administration, which employs them, claimed, "fighting terrorism demands a flexible workforce that can rapidly respond to threats. That can mean changes in work assignments and other conditions of employment that are not compatible with the duty to bargain with labor unions."
Had this been the private sector, or even those remaining parts of the Federal government where normal labor rights still apply, Loy’s action would itself have been illegal. Private sector workers got the right to organize unions under the National Labor Relations Act in 1936. Federal workers had to wait a few decades, but under Jimmy Carter Congress passed the Civil Service Reform Act, which became effective on January 20, 1980. Since then all Federal employees have had the right to bargain, except soldiers in the military.
That is, until President Bush got Congress to change the rules. Since September 11, 2001, the terrain for labor relations has changed dramatically. Title 5 of the Civil Service Act was modified, and many rights were stripped away.
The original workforce of 40,000 baggage screeners was fired when Congress created the Transportation Security Administration. TSA refused to rehire them because most were immigrants. They were really some of the first victims of the post-911 anti-immigrant hysteria. They were blamed for letting the hijackers on the airplanes, despite the fact that no one was ever shown to have violated any inspection protocol.
Then, among the new screeners hired by TSA, unions were prohibited. TSA spokesperson Chris Rhatigan justified the ban. “Collective bargaining would be incompatible with the nation's safety," he said. Nico Melendez, another TSA representative, declared bluntly, "security is paramount and collective bargaining could cripple the system.”
“What they really did was take away the system that gave people a feeling of fairness at work,” Dryovage explains, trying to stay calm, “like grievance procedures, the right to protest bad treatment, or blow the whistle if management wasn’t following its own rules. That has a big effect on morale. A feeling of fairness and security is fundamental to people working on a team.”
This spring, the government moved one step further in its denial of union rights. John Gavello, who’d been working as a screener in Oakland since last summer, was fired when he tried to organize his fellow workers.
When Loy banned unions a year-and-a-half ago, the new TSA workforce was in the midst of a major organizing drive. The American Federation of Government Employees had filed petitions to bargain for thousands of workers at LaGuardia, Baltimore, Pittsburgh, Chicago Midway, Greensboro, Harlingen/McAllen/Brownsville, and Columbus. More workers were forming organizing committees at JFK, Tampa, Orlando, Charlotte, Atlantic City and Des Moines.
Loy’s edict stopped the drive in its tracks.
Many workers, however, still wanted to get organized. Gavello was one of them. After getting his screener’s job a year ago, he noticed that some workers had to wait weeks to get their paychecks. When he was asked to work Sundays, TSA refused to pay him overtime. “People were afraid to complain,” he said, “because management would pull them in, accuse them of making mistakes, and interrogate them.”
Despite Loy’s ban, Gavello thought a union was needed. But standing on a soapbox isn’t his style. Instead, in a calm and open approach to his managers last November, he told his supervisor he intended to post union literature on the employee bulletin board. He did this even before he started talking about his union idea to other workers, His immediate superior had no problem with it.
Despite having a part-time status for most of the time he worked for TSA, Gavello put in a lot of hours at the big Invision machine which X-rays suitcases in the lobby of Terminal One. His coworkers obviously like him, and even today talk with him warmly when he stops by his old worksite. He’s a natural organizer, and would have quickly signed up most of his workmates.
Someone must have checked with Washington, however, and things soon changed. On November 20, Gavello was given a written warning that said “You are not allowed to enter into any discussion or conversion about your union, or solicit membership in or for any union...while on duty as a TSA Transportation Security Screener.”
The next day, he was accused of talking union with another worker. “I told them I’d done nothing wrong,” Gavello says. He asked for a witness to his interrogation by supervisors, a right guaranteed at the time even to non-union workers by the Weingarten Rule, issued in the 1970s by the National Labor Relations Board. His request was denied, and Gavello was suspended for two weeks. Early this year, the Bush administration’s appointees to the NLRB announced that the Weingarten Rule no longer applies to non-union workers.
Gavello wasn’t immediately fired, but TSA began building a file on him. Gavello continued to protest shortcomings in the workplace, and on February 26, faxed a copy of a complaint to TSA in Washington DC. He also sent a copy to another AFGE lawyer helping him with his case, Gony Frieder. TSA called this a breach of security and fired him.
“That’s ridiculous – they can’t fire someone for seeking the advice of an attorney. It’s clear he was fired for union activity,” Dryovage says. “His supervisor even told him they were watching him, and would get him for it. They just don’t want any union activists to work there because they want complete flexibility in how they treat their workers, and so they don’t want people with a good sense of their rights.”
Melendez would not comment on Gavello's case. "Screeners can join unions," he asserted, but admitted that "they cannot engage in collective bargaining, which is incompatible with national security." He couldn't give an example, however, of a situation in which a union or contract would jeapordize it.
Ken Jacobs, deputy chair of the Center for Labor Research and Education at UC Berkeley, said Gavello's case "falls within a concerted strategy by the Federal government to restrict union rights." He says the elimination of Weingarten rights and the ban on unions for airport screeners are connected. "The strategy is to take away labor right," he explains. "The method may vary, but the trend is the same."
The Alice-In-Wonderland process didn’t stop there, however.
In April, Gavello and Dryovage filed suit over the firing in US District Court, saying it violated his Constitutional right to free speech and freedom of association. The government responded that Federal employees can’t use the courts to resolve workplace problems. Instead, they are required to use civil service procedures.
But in practically the next sentence, TSA attorneys said that Gavello can’t do that either. The same order that banned collective bargaining at TSA also suspended civil service’s grievance procedures and whistle-blower protections.
According to the government, Constitutional rights end where the baggage lines begin.
The Federal government is still the authority responsible for enforcing the laws that guarantee almost all workers the right to a union, including Federal employees outside the Homeland Security Department. And the preamble to National Labor Relations Act, still declares that workers not only can, but should, come together in unions to bargain with their employers. This statement is the bedrock of all US labor protection legislation.
That makes Gavello’s case a watershed in determining what labor rights US workers will continue to have. “The administration has plans on the drawing board to expand this experience to other Federal agencies,” Dryovage warns. “The Defense Department, with an even larger workforce, is next in line. But international law, not just US law, guarantees the right to have a union, and we’re at a very important point in history if the government can say they don’t apply here.”
But Gavello’s case highlights a growing conflict of interest. How can the Federal government protect workers’ right to organize, while at the same time saying it can fire one of its own employees with impunity, when he tries to do so? Dryovage says the government doesn’t really have a case, and under normal circumstances, Gavello would see his rights recognized by the courts. But if these were normal times, Admiral Loy would have been laughed at for asserting that having a union would jeapordize the nation’s security.
As the case sits before US District Judge Claudia Wilkin in San Francisco, the right to a union hangs in the balance. “My case could decide whether workers have rights, and not just at airports,” Gavello says. “Right now, it feels like we don’t have any rights at all.”
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