Appeals Court Sides With Union, TSA Airport Screener

Even though the government's 43,000 airport screeners do not have full civil service rights, they still can file claims under the Constitution, a U.S. appeals court has ruled.

The ruling came in a case brought by a union and John Gavello, who had worked as a federal security screener at the Oakland International Airport. He was fired in 2004 after being warned by his bosses against posting union materials without their approval.

In their suit, the American Federation of Government Employees and Gavello contended that the Transportation Security Administration violated his First Amendment rights of speech and free association by firing him.

The government countered that Congress had precluded judicial review of screeners' constitutional claims because screeners were excluded from civil service job protections when the TSA was created in 2001.

The U.S. District Court for the Northern District of California in 2004 agreed with the government, but that decision was reversed Wednesday by the U.S. Court of Appeals for the 9th Circuit.

Writing on behalf of a three-judge appeals court panel, Judge William A. Fletcher said, "If Congress wishes to deny federal employees the ability to redress alleged constitutional violations, it must state its intention clearly."

Fletcher sent the case back to the district court, saying that the court has jurisdiction over Gavello's claims and that the AFGE has standing to bring the case.

The Gavello case is part of a larger effort by organized labor to win bargaining rights and union protections for security officers at the TSA. In creating the TSA after the Sept. 11, 2001, terrorist attacks, Congress provided the Bush administration with broad leeway to set the terms and conditions of employment for screeners. Citing national security considerations and the need for different work rules at the nation's 400 airports, the TSA decided to not permit collective bargaining for screeners.

Gavello's dispute with the TSA began in 2003, when he posted AFGE materials during break times and made union forms available to fellow employees. The following year, Gavello mailed a grievance to a security director requesting written procedures "regarding baggage inspection swiping and sampling" and wrote "cc: AFGE Legal Counsel" at the end of his grievance letter, according to the appeals court ruling.

The TSA fired Gavello six days after he sent the letter, saying he had improperly disclosed sensitive security information to an unauthorized party -- the union.

A TSA spokeswoman said the agency does not comment on litigation.

Even though the TSA does not bargain with unions, TSA officials say that screeners may join unions and that at least 1,300 have union dues deducted from their paychecks. Employees also have internal channels for challenging discipline and firings, they said.

Bias Found in SEC Pay System

The pay-for-performance system at the Securities and Exchange Commission discriminated against African American employees and older employees in 2003, according to an arbitrator's findings.

Arbitrator James M. Harkless found that black employees in grades 8 through 16 and SEC employees age 40 and older received significantly fewer pay increases than would be expected given their representation at the agency.

The ruling came in response to a grievance filed by the National Treasury Employees Union, which represents more than 2,200 SEC employees. Colleen M. Kelley, the union president, said Harkless's decision "should serve as yet another warning against rushing to implement pay-for-performance systems in the federal workplace."

Congress authorized the SEC to overhaul its pay practices in 2002, exempting it from regular civil service rules. The agency was struggling at the time with an alarming rate of turnover among lawyers, accountants and examiners, especially in New York. SEC pay jumped by an average of 14 percent in the system's first year.

But Harkless found fault with the pay system in a decision issued Tuesday and released by the union yesterday. "The SEC's subjective program was poorly conceived, was implemented without providing adequate guidelines to employees and supervisors, and was executed in a haphazard and inconsistent fashion across the agency," he wrote.

His ruling was based, in part, on statistical data presented by the union. The SEC disputed conclusions drawn by the union's expert.

When setting up pay systems, agencies must ensure they comply with several employment laws, including the 1964 Civil Rights Act and the 1967 Age Discrimination in Employment Act. Harkless's decision found that the SEC pay system led to discrimination against 324 black employees and 1,109 employees who were 40 and older.

Harkless gave the union and agency 60 days to file briefs proposing a remedy or come to some agreement on a remedy. "We are reviewing the decision and considering appropriate action," said John D. Heine, an SEC spokesman.

Talk Shows

Jim Seymour, who heads the Service to America Medal program at the Partnership for Public Service, will be the guest on "FedTalk" at 11 a.m. today on Federalnewsradio.com and WFED radio (1050 AM).

Raymond L. Orbach, undersecretary for science at the Energy Department, will be the guest on the IBM "Business of Government Hour" at 9 a.m. Saturday on WJFK radio (106.7 FM).

Stephen Barr's e-mail address isbarrs@washpost.com.