TSA Whistle-Blowers Gain Access to Merit Systems Protection Board

One of the government's largest workforces will get an extra layer of whistle-blower protection.

In an announcement yesterday, the Transportation Security Administration said passenger and baggage screeners whose bosses retaliate against them for blowing the whistle on waste, fraud and abuse can bring their cases to the Merit Systems Protection Board, an independent quasi-judicial agency that hears appeals from federal employees.

The board will handle screener complaints "in the exact same manner" as it does from any other federal employee, said Gale Rossides, the TSA's deputy administrator. "If the MSPB issues a decision, TSA is committing to abide by that decision."

In creating the TSA as part of its response to the Sept. 11, 2001, terrorist attacks, Congress gave the agency wide leeway to set personnel policies for screeners, rather than treat them the same as other federal employees. That decision has led federal unions, which cannot bargain on behalf of TSA screeners, to complain that the 43,000 security officers have been relegated to second-class status in the government.

To provide some safeguards, the TSA in 2002 entered into an agreement with the Office of Special Counsel, another independent agency, so the office could investigate screeners' complaints of workplace reprisal for reporting fraud and mismanagement. If the office finds a screener has suffered retaliation, it recommends corrective action, including discipline of any supervisor who acted improperly.

Now, under yesterday's announcement, the TSA and the merit board have agreed that screeners who do not get a finding by the Office of Special Counsel in their favor may file an appeal with the board.

Kip Hawley, the TSA administrator, said the agreement with the merit board "provides TSA officers with another independent avenue for whistle-blower concerns."

Neil A.G. McPhie, chairman of the merit board, said "third-party review should increase the confidence of security officers to make these disclosures and contribute to the traveling public's sense of safety."

The American Federation of Government Employees has lobbied for the TSA to strengthen whistle-blower protections, and the union's general counsel, Mark Roth, called yesterday's announcement "a terrific victory" and "a tremendous big step."

Still, Roth and Colleen M. Kelley, president of the National Treasury Employees Union, said the TSA needs to do more to protect whistle-blowers, including permit screeners to appeal merit board decisions to federal court.

The TSA, however, cannot provide for a court remedy under its reading of the agency's legislative charter, Rossides said. "We would be fine if the Congress also laid this out in statue and provided the final federal court remedy," she said.

Sens. Daniel K. Akaka (D-Hawaii) and George V. Voinovich (R-Ohio), who specialize in federal employee issues, said they were pleased that the TSA will permit screeners to file claims with the merit board.