TSA can hire and fire airport screeners, court rules

The American Federation of Government Employees lost a court battle to prevent the Transportation Security Administration from temporarily hiring or firing more airport screeners, a union lawyer said Tuesday.

The federal district court for the District of Columbia on Monday denied the union's motion for a temporary restraining order against TSA, said Gony Frieder, staff counsel for AFGE TSA Local No. 1.

The union asked the court to temporarily prevent TSA from hiring new security screeners who were not previously employed as screeners by TSA, and to prevent TSA from laying off any more screeners.

The union wanted the restraining order to be in effect until the court rules on a lawsuit it filed against TSA in August. The lawsuit alleges that TSA violated veterans preference laws and other employee rights when it conducted a reduction in force of screeners this year. Specifically, the lawsuit claims that the RIF violated the 2001 Aviation and Transportation Security Act, the 1946 Administrative Procedure Act and the 1967 Age Discrimination in Employment Act, and deprived affected federal employees of their constitutional rights.

"We asked for everything to be stopped, and to basically maintain the status quo of the current situation until the [lawsuit] is resolved," Frieder said. She added that the union is considering whether to appeal the denial.

TSA spokesman Darrin Kayser declined to comment on any legal issues involving the court decision, saying they are still pending.

The court has yet to rule on the union's lawsuit against the RIF. However, in the middle of October, TSA filed a motion with the court to have the lawsuit dismissed. In its motion, TSA made a technical argument that the district court does not have jurisdiction over the matter, and that the union failed to properly file a claim under federal law.

At the end of October, the union, in turn, filed its opposition to the TSA's motion to dismiss, arguing that its lawsuit is fully substantiated.

Congress ordered TSA to conduct the RIF, but let the agency decide how to cut workers. AFGE wants the agency to re-do the RIF, in the hope that some of the screeners who lost their jobs would get them back.

Through the RIF, TSA cut 6,000 screeners between May and the end of September, Kayser said. The agency now employs 48,000 screeners, of which only 5 percent are part-time workers. Because the court ruled against the union this week, TSA can continue its campaign to hire more part-time screeners at select airports across the country. The agency has used news releases and radio ads to attract part-time workers at about 50 airports.

"We said in May that a number of airports were understaffed while some were overstaffed," Kayser said. "While we did bring down our workforce by 6,000 workers, we are also currently hiring part-time screeners to fill in the gaps where they are."

However, Frieder said hiring and training new part-time workers and paying for advertising spots is a "waste of money" when thousands of qualified screeners who were laid off could be moved into those positions.

Although airport screeners are represented by AFGE, they do not have collective bargaining rights. TSA Administrator James Loy issued a directive in January saying TSA would not recognize such rights for screeners. AFGE filed a lawsuit against that directive as well, alleging that it was unconstitutional. However, in another legal setback, the court ruled against the union's lawsuit in early September. The union has appealed that court ruling.

Last month, President Bush nominated Loy to be deputy secretary of the Homeland Security Department. Loy is awaiting Senate confirmation, and his successor at TSA has not yet been announced. However, Frieder added that a new administrator could lift the directive and allow screeners to have collective bargaining rights.

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