Firstline Transportation Security

National Labor Relations Board - Board Decisions

Jun 28, 2006

347 N.L.R.B. 447 (N.L.R.B. 2006)

FIRSTLINE TRANSPORTATION SECURITY
347 NLRB No. 40
447
Firstline Transportation Security, Inc. and Interna-
tional Union, Security, Police and Fire Profes-
sions of America (SPFPA). Case 17–RC–12354
June 28, 2006
DECISION ON REVIEW AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN,
SCHAUMBER, KIRSANOW, AND WALSH
In this case, the Board must decide whether to assert
jurisdiction over Firstline Transportation Security, Inc.
(the Employer), an Ohio-based private company that
provides passenger and baggage screening services at the
Kansas City International Airport, in Kansas City, Mis-
souri, pursuant to a contract with the Transportation Se-
curity Administration (TSA). The issue concerns the
intersection of two statutes: the National Labor Relations
Act1 (the Act), and the Aviation and Transportation Se-
curity Act (ATSA).2 The stated purposes of the Act are
to encourage the practice and procedure of collective
bargaining and protect employee freedom of choice in
deciding whether they wish to be represented for the
purposes of collective bargaining and by whom. The
stated purpose of the ATSA is to improve aviation secu-
rity.
On May 27, 2005, the Regional Director for Region 17
issued a Decision and Direction of Election in which he
determined that the Employer is subject to the Board’s
jurisdiction. Thereafter, in accordance with Section
102.67 of the Board’s Rules and Regulations, the Em-
ployer filed a timely request for review. While the Em-
ployer stipulated that it meets both the definitional and
monetary jurisdictional requirements under the Board’s
decision in Management Training Corp.,3 it contended
that the Regional Director erred in asserting jurisdiction
over it because the Board is statutorily barred from doing
so by the TSA’s under secretary, James Loy’s determina-
tion that federally-employed screeners are not entitled to
engage in collective bargaining. Alternatively, the Em-
ployer argued that the Board should decline to assert
jurisdiction in the interest of national security.
The election was conducted as scheduled on June 23,
2005, and the ballots were impounded pending the
Board’s decision. By Order dated June 30, 2005, the
Board granted the Employer’s request for review.4 On
July 7, 2005, the Board issued a Notice and Invitation to
File Briefs. On July 8, 2005, the Board’s acting solicitor

1 29 U.S.C. §§ 151–169.
2 Pub. L. No. 107–71, 115 Stat. 635 (2001) (codified as amended in
scattered secs. of 5, 26, 31 & 49 U.S.C.).
3 317 NLRB 1355 (1995).
4 See Firstline Transportation Security, 344 NLRB 1007 (2005)
(with Member Liebman dissenting).
wrote to the TSA’s chief counsel to solicit the TSA’s
views on the case.
The Employer and the Petitioner filed briefs on review.
Eight amici curiae also filed briefs.5 The Employer and
Petitioner subsequently filed responses to the amici cu-
riae briefs. The TSA submitted a statement and a clarifi-
cation to its statement.
Having carefully considered the entire record in this
proceeding, including the briefs on review, the amici
curiae briefs, the response briefs, and the statement and
clarification of the TSA, we conclude that we should
assert jurisdiction over the Employer. We find that the
Board is not statutorily barred from asserting jurisdiction
over the Employer by Under Secretary Loy’s determina-
tion that federally-employed screeners are not entitled to
engage in collective bargaining. Further, in accordance
with a long line of Board precedent, we do not believe
that the Board should, in this case, decline to assert juris-
diction in the interest of national security. Consequently,
we affirm the Regional Director’s decision for the rea-
sons set forth below.
I.
A. Relevant Statutory Provisions
In response to the terrorist attack on September 11,
2001, Congress passed the ATSA, making airport secu-
rity a direct Federal responsibility and creating the TSA
as an entity within the Department of Transportation.
See 49 U.S.C. § 114. Congress provided that the head of
the TSA, the under secretary of Transportation for Secu-
rity, would be responsible for the security screening of
all passengers and property carried aboard passenger
aircraft, and for the hiring, training, and employment
standards of security screening personnel. The ATSA
also provided that Federal Government employees would
perform the actual work of screening passengers and
property. ATSA Section 44901(a) states:
(a) In general.—The Under Secretary of Transporta-
tion for Security shall provide for the screening of all
passengers and property, including United States mail,
cargo, carry-on and checked baggage, and other arti-
cles, that will be carried aboard a passenger aircraft op-
erated by an air carrier or foreign air carrier in air trans-
portation or intrastate air transportation. In the case of
flights and flight segments originating in the United

5 Amici curiae briefs were filed by the following: American Federa-
tion of Government Employees; Service Employees International Un-
ion; American Federation of Labor-Congress of Industrial Organiza-
tions; International Longshore and Warehouse Union; The Honorable
John L. Mica, U.S. House of Representatives; The Honorable Dick
Armey, Former Majority Leader, U.S. House of Representatives; Na-
tional Right to Work Legal Defense Foundation; and Akal Security.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD448
States, the screening shall take place before boarding
and shall be carried out by a Federal Government em-
ployee (as defined in section 2105 of title 5, United
States Code), except as otherwise provided in section
44919 or 44920 and except for identifying passengers
and baggage for screening under the CAPPS and
known shipper programs and conducting positive bag-
match programs.6
Congress also provided that the under secretary could
contract with a “qualified private screening company” to
perform screening functions pursuant to two different
sections of the ATSA. First, Section 44919, authorized
the TSA to establish a 2-year pilot program known as the
“PP5 Pilot Program,” at five airports. Second, Section
44920 provided that, 3 years following the enactment of
the ATSA, the TSA could establish an “opt-out” program
allowing any airport nationwide to contract with a private
screening company.
Section 44935 sets forth employment and training
standards for security screeners employed by the Federal
Government, and gives the head of the TSA the authority
to establish programs for the hiring and training of such
personnel. The ATSA applies these standards to private
contractors hired under the pilot and “opt-out” programs.
Included at Section 44935(i) is a prohibition of the right
to strike by all individuals employed in screening posi-
tions. This provision states:
(i) Limitation on right to strike.—An individual that
screens passengers or property, or both, at an airport
under this section may not participate in a strike, or as-
sert the right to strike, against the person (including a
governmental entity) employing such individual to per-
form such screening.7
Further, the annotation to Section 44935 (also referred
to as the “Note”) states the following:
Notwithstanding any other provision of law, the Under
Secretary of Transportation for Security may employ,
appoint, discipline, terminate, and fix the compensa-
tion, terms, and conditions of employment of Federal
service for such number of individuals as the Under
Secretary determines to be necessary to carry out the
screening functions of the Under Secretary under sec-
tion 44901 of Title 49, United States Code. The Under
Secretary shall establish levels of compensation and
other benefits for individuals so employed.8

6 49 U.S.C. § 44901(a).
7 49 U.S.C. § 44935(i).
8 49 U.S.C. § 44935 Note.
In November 2002, Congress passed the Homeland
Security Act, 6 U.S.C. § 111, creating the Department of
Homeland Security as an executive department and trans-
ferring the TSA from the Department of Transportation
to the Department of Homeland Security. On January 8,
2003, Admiral James Loy, the TSA’s under secretary,
issued a memorandum denying collective-bargaining
rights and the right to representation to security screeners
employed by the TSA.9 In its entirety, the memorandum
states:
By virtue of the authority vested in the Under Secretary
of Transportation for Security in Section 111(d) of the
Aviation and Transportation Security Act, Pub. Law
No. 107-71, 49 U.S.C. § 44935 Note 2001, I hereby de-
termine that individuals carrying out the security
screening function under section 44901 of Title 49,
United States Code, in light of their critical national se-
curity responsibilities, shall not, as a term or condition
of their employment, be entitled to engage in collective
bargaining or be represented for the purpose of engag-
ing in such bargaining by any representative or organi-
zation.
On November 4, 2003, the Federal Labor Relations
Authority (FLRA) upheld Under Secretary Loy’s deter-
mination that Federal security screeners have no collec-
tive-bargaining or representational rights. U.S. Depart-
ment of Homeland Security, Border & Transportation
Security Directorate, Transportation Security Admini-
stration, 59 FLRA 423 (2003).10

9 Title 5 of the U.S. Code generally requires Federal agencies to bar-
gain with employee organizations, subject to any limitations “specifi-
cally provided for by Federal Statute.” Certain agencies, such as the
Federal Bureau of Investigation and the Central Intelligence Agency,
are expressly exempt from Agency coverage under Title 5, in part
because of their distinct roles in national security. The TSA and the
Department of Homeland Security are not exempt by statute.
10 In making its finding that the ATSA language precluded the asser-
tion of jurisdiction, the FLRA relied exclusively on the language of the
annotation to Sec. 44935 to conclude that collective bargaining and
union representation were inappropriate, because the under secretary
had unfettered discretion in making all decisions about the “terms and
conditions of employment of Federal service” of security screeners.
The FLRA further reasoned that “notwithstanding any other provision
of law,” language contained in the same annotation “trumped” any
other provision of the ATSA that might purport to give TSA employees
collective-bargaining rights. The FLRA concluded that the other provi-
sions of the ATSA that allowed TSA employees the same rights as
other Federal employees, including the right to collectively bargain,
applied only to nonsecurity-screener positions at the TSA, but because
of the more specific language of Sec. 44935’s annotation, security
screeners in the “Federal service” were not entitled to the collective-
bargaining rights afforded other TSA employees.
FIRSTLINE TRANSPORTATION SECURITY 449
B. Facts
Kansas City International Airport is one of the five
airports chosen by the TSA to contract with private com-
panies to perform passenger and baggage screening op-
erations pursuant to the PP5 pilot program.11 In 2004,
both the United Steelworkers of America and the Interna-
tional Association of Machinists and Aerospace Workers
petitioned to represent the Employer’s screening em-
ployees at the airport. The Employer did not contest the
Board’s assertion of jurisdiction at that time but did ar-
gue that its employees were guards and therefore could
not be represented by the Steelworkers or Machinists
consistent with Section 9(b)(3) of the Act. The Regional
Director agreed with the Employer and dismissed the
petitions. The Board subsequently denied the Machin-
ists’ request for review of the Regional Director’s deci-
sion.12
In 2005, the Petitioner, International Union, Security,
Police and Fire Professionals of America, filed the in-
stant petition seeking to represent the Employer’s
screeners and lead screeners performing guard duties.
The Petitioner is a guards-only union. The Employer
challenged the petition. At a hearing, the Employer ac-
knowledged that it meets the Board’s statutory and dis-
cretionary jurisdictional standards; nevertheless, it con-
tended that it was not subject to the Board’s jurisdiction.
The Employer’s argument was twofold. First, it asserted
that the Board is statutorily barred from asserting juris-
diction by Under Secretary Loy’s determination that fed-
erally-employed screeners are not entitled to engage in
collective bargaining. Second, the Employer argued that
even if the ATSA’s provisions do not specifically pre-
clude the Board from asserting jurisdiction, the Board
should decline to assert jurisdiction in the interest of na-
tional security.
II.
A. The TSA’s Interpretation of the ATSA
We begin with the familiar canon of statutory con-
struction that “the starting point for interpreting a statute
is the language of the statute itself.” Consumer Product
Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102,
108 (1980). It is undisputed that the ATSA is silent
when it comes to the collective-bargaining rights of any
group of employees. The statute does not provide for

11 The other four airports are located in Tupelo, Mississippi; San
Francisco, California; Rochester, New York; and Jackson Hole, Wyo-
ming. The 2-year duration of the pilot program ended officially in
November 2004, although the contractors are continuing to perform
screening services under the “opt-out” program.
12 See Firstline Transportation Security, Cases 17–RC–12297 and
17–RC–12298 (2004) (unpublished Order).
collective-bargaining rights for any employees, private or
Federal, and similarly it does not specifically prohibit
collective bargaining.
Rather, it is the under secretary’s memorandum
(memorandum) that deals with collective-bargaining
rights and prohibits screener employees from engaging in
collective bargaining. The Employer and various amici
curiae contend that the memorandum applies to both pri-
vate and Federally-employed screeners. The Petitioner
and other amici curiae contend that it only applies to
Federally-employed screeners. Nothing on the memo-
randum’s face answers the question.
In issuing the memorandum, the under secretary relied
exclusively on the authority vested in him by the annota-
tion to Section 44935. Consequently, we must examine
the annotation to Section 44935 to determine if it vests
the under secretary with authority to “set the terms and
conditions of employment” of screeners who work for
private employers. Only if it does so can the memoran-
dum legitimately be read to apply to privately-employed
screeners.
According to the TSA, the annotation to Section 44935
applies only to security screeners employed by the TSA
and not to privately-employed security screeners and,
therefore, does not prohibit privately-employed screeners
from engaging in collective bargaining.
In the statement the TSA filed with the Board, the TSA
wrote:
Although aviation security screeners employed by TSA
are statutorily barred from engaging in mandatory col-
lective bargaining, see §111(d) of the Aviation Trans-
portation and Security Act of 2001, P.L. 107-71, 115
Stat. 597, codified at 49 U.S.C. § 44935 Note, it is the
TSA’s position that this provision does not extend to
aviation screeners employed by qualified screening
companies. Therefore, § 111(d) does not prohibit pri-
vately-employed screeners from engaging in collective
bargaining.
Given this interpretation, the memorandum issued by
the Under Secretary cannot apply to privately employed
security screeners because of a lack of statutory under-
pinning. The under secretary only has the statutory au-
thority to “fix the compensation” and the “terms and
conditions of employment” of federally-employed
screeners and can consequently use that power to pro-
hibit them from being represented for the purposes of
collective bargaining. The annotation does not provide
the under secretary the statutory authority to prohibit
private screeners from being represented for the purposes
of collective bargaining, even though those individuals
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD450
carry out the same security-screening function as feder-
ally-employed screeners.
Further, after it filed its statement with the Board, the
TSA filed a clarification. This clarification does not call
into question the TSA’s first statement interpreting the
annotation to Section 44935. In the clarification, the
TSA called the Board’s attention to Section 108 of the
ATSA. That section includes two provisions that relate
to privately-employed security screeners: 49 U.S.C. §
44919(f), for pilot program airports, and Sec. 44920(c),
for “opt-out” airports, both of which require that a pri-
vate screening company “only employ individuals to
provide such services who meet all the requirements of
this chapter applicable to Federal Government personnel
who perform screening services at airports.” The “re-
quirements” applicable to Federal Government personnel
who perform screening services at airports are the enu-
merated employment and training requirements set out in
Sections 44935(e) through (j). They concern things such
as citizenship, education qualifications, English profi-
ciency, test scores, background checks, and length of
training. In creating the PP5 program and the “opt-out”
program Congress wanted to make sure that all screeners
were subject to the same standards and training require-
ments.
These requirements do not relate to labor relations or
collective bargaining. As mentioned above, collective
bargaining is not mentioned anywhere in the ATSA and
therefore it cannot be a “requirement” of the ATSA ap-
plicable to Federal Government personnel who perform
screening services. The decision to bar federally-
employed screeners from bargaining collectively was a
policy decision made by the under secretary. While he
was empowered to make the determination because of
the authority vested in him by the ATSA, the ban is not a
“requirement” of the ATSA.
TSA publications are consistent with the TSA’s inter-
pretation of the annotation to Section 44935. They reit-
erate that collective bargaining by privately-employed
screeners is “a matter between those screeners and their
employer.” As noted by the Regional Director in his
Decision and Direction of Election, the TSA’s website
page dealing with frequently asked questions about the
private contracting of security-screening functions con-
tains the following answer, in response to the question of
what the TSA’s policy is regarding private screeners’
rights to unionization:
A: It is TSA policy to allow federal screeners to join
any union but to not allow any union to represent all
screeners for the purpose of collective bargaining.
TSA does not take a position regarding whether
screeners employed by private screening companies
may organize their company. This is a matter between
those screeners and their private employer. However,
airport security screeners, private or federal, do not
have the right to strike.
As the Regional Director also pointed out, in its June
2004 guidance on screening program partnership, page 8,
under the headline of “Collective Bargaining,” the TSA
states in part: “Federal screeners are not entitled to en-
gage in collective bargaining with TSA. TSA is neutral
about contract employees of a private firm seeking to
organize themselves for collective bargaining with that
contractor.”
The TSA was granted intervenor status in the case of
Covenant Aviation Security, LLC, Case 20–RC–17896.13
Covenant Aviation is a private firm providing airport
security screening services at San Francisco International
Airport. The TSA stipulated that it was not a joint em-
ployer with Covenant and it filed a posthearing brief reit-
erating that position. The TSA did not object to the
Board’s assertion of jurisdiction.
Since the TSA is the agency charged with administer-
ing the ATSA, we defer to the TSA’s interpretation of
that statute.14 Indeed, its interpretation is our primary
reason for rejecting the Employer’s and amici curiae’s
argument that Admiral Loy’s memorandum applies to
privately employed screeners.15 The Board respects

13 We take administrative notice of this case which was discussed in
the brief filed by amicus curiae Service Employees International Union.
14 We recognize that in the eyes of the courts an agency’s expertise
does not extend beyond its interpretations of its own enabling statute
and, as a result, courts do not defer to an agency’s interpretation of a
statute whose administration is entrusted to another agency. See Secre-
tary of Labor, Mine Safety and Health Administration v. Excel Mining,
LLC, 334 F.3d 1, 7 (D.C. Cir. 2003); Illinois National Guard v. FLRA,
854 F.2d 1396, 1400 (D.C. Cir. 1988); Tsosie v. Califano, 651 F.2d
719, 722 (10th Cir. 1981). Therefore, a court would not defer to our
interpretation of the annotation to Sec. 44935; it would only defer to the
TSA’s interpretation because the TSA is the agency entrusted to admin-
ister the ATSA.
15 Prior to the TSA’s submission of its interpretation of the annota-
tion to Sec. 44935, the Employer contended that the fact that Secs.
44919 and 44920 are mentioned in Sec. 44901 means that the annota-
tion to Section 44935, which references Sec. 44901, applies to private
security-screener employees, as well as Federal Government screeners.
However, in light of the TSA’s statements, the Employer abandoned
this line of argument in its reply brief. In its reply brief, the Employer
contends that while the annotation to Sec. 44935 gives the under secre-
tary authority to issue his Memorandum, it is by no means the only
provision of the ATSA that could do so. The Employer looks to Sec.
114 to provide the under secretary with authority to issue his Memo-
randum. Sec. 114 is the Section of the ATSA that creates the position
of under secretary of transportation for security. Specifically, subsec-
tion (e) states that the under secretary shall be responsible for day-to-
day Federal security screening; develop standards for the hiring and
retention of security-screening personnel; train and test security-
FIRSTLINE TRANSPORTATION SECURITY 451
other agencies’ interpretations of the statutes they are
charged with implementing. See, e.g., Exxon Shipping
Co., 312 NLRB 566, 567 (1993).16
In addition to looking to other agencies on statutory in-
terpretation issues, the Board has previously looked to
the view of other Federal agencies when deciding
whether to assert jurisdiction. In General Electric Co.,
89 NLRB 726, 736 (1950), the Board looked to the
Atomic Energy Commission when deciding whether to
exercise jurisdiction over the employer’s atomic energy
plant, which was operated under contract with the
Atomic Energy Commission. The Commission assented
to collective bargaining among the employees involved
in past cases and took no contrary position before the
Board in that case.17 Here, while the TSA did not spe-
cifically assent to the Board’s exercise of jurisdiction, it
did expressly state that organizing is a matter between
private screeners and their employers, and expressed no
concerns that would constrain the Board in determining
whether to assert jurisdiction.
B. Further Interpretation of the ATSA
In addition to the TSA’s interpretation of the annota-
tion to Section 44935, our own analysis of the ATSA
persuades us that the annotation does not extend to
screeners employed by private entities and, as a result,

screening personnel; and be responsible for hiring and training person-
nel to provide screening.
We find that the Employer’s reinterpretation of the memorandum
does not withstand scrutiny. While the Employer may be correct that
the under secretary could have relied on Sec. 114 as the authority to
issue his Memorandum, the fact remains that he did not. The text of the
Memorandum is clear—the under secretary relied on the power vested
in him by the annotation to Sec. 44935. According to the TSA, the
annotation to Sec. 44935 does not apply to privately employed screen-
ers and consequently neither does the Memorandum. We will not
speculate about what other provisions, if any, the under secretary could
have relied on.
16 In Exxon Shipping Co., 302 NLRB 290 (1991), the Board found
that the employer violated Sec. 8(a)(1), (3), and (5) of the Act. In doing
so, the Board construed 46 U.S.C. § 10315, a statute dealing with the
allotment of wages for coastwise shipping. The U.S. Court of Appeals
for the Third Circuit remanded the case to the Board with instructions
to solicit the Department of Transportation’s views on the applicable
shipping statutes. Exxon Shipping Co. v. NLRB, Docket Nos. 91-3230
and 91-3283 (3d Cir. 1991) (unpublished judgment). Pursuant to that
direction, the Board queried the department. The Board reconsidered
its original decision in light of the court’s remand, the Coast Guard’s
interpretation of the statutory provisions, and the parties’ statements of
position, and reversed its original decision and dismissed the complaint.
The Board stated: “In doing so, we give substantial weight to the inter-
pretation of the Coast Guard.” Exxon Shipping Co., 312 NLRB 566,
567 (1993). See also Olaa Sugar Co., 118 NLRB 1442, 1444 (1957);
Imperial Garden Growers, 91 NLRB 1034, 1037 (1953).
17 See also Reynolds Corp., 74 NLRB 1622, 1630 (1948); Sac & Fox
Industries, 307 NLRB 241 (1992).
neither does the memorandum.18 The annotation states:
“[T]he Under Secretary of Transportation for Security
may employ, appoint, discipline, terminate, and fix the
compensation, terms, and conditions of employment of
Federal service.” The key words are “Federal service.”
If the private screeners are also in “Federal service,” then
arguably they could be deemed covered by the memo-
randum. Contrary to the Employer and certain amici
curiae, we do not believe that “Federal service” should
be read to encompass all screener employees. “Federal
service” is synonymous with “Federal employee” and
consequently screeners who are employed by a private
screening company are not members of the “Federal ser-
vice.”
The drafters of the ATSA were cognizant of the differ-
ence between federally-employed screeners and pri-
vately-employed screeners. Consistent therewith, the
language of the ATSA recognizes that there are screeners
who are part of the “Federal service” and screeners who
are not. Nothing in the ATSA suggests that the private-
sector screeners should be treated as Federal-sector
screeners.19
The language of Section 44935(i), the strike provision
(quoted, supra at 2), reflects Congressional acknowl-
edgement of the two separate groups of screeners under
the ATSA—those in the “Federal service” and those who
are privately employed—and that the limitation on the
right to strike applies to both groups. If this were not the
case, then there would have been no reason to specifi-
cally reference a “governmental entity” as included
within the definition of “person” employing the screener.
Under the Federal Service Labor Management Rela-
tions Statute (FSLMRS), Federal employees do not have
the right to strike.20 On the other hand, the right to strike
is recognized as a fundamental right under the Act.

18 See Allis-Chalmers Mfg. Co., 52 NLRB 100, 102 (1943) (“There
is nothing in the War Labor Disputes Act to indicate that Congress
intended the Act to encroach in any way upon the exclusive authority
which the National Labor Relations Act grants to the Board to investi-
gate and determine in appropriate cases questions concerning the repre-
sentation of employees.”).
19 Sec. 44901(a) states that “screening shall take place before board-
ing and shall be carried out by a Federal Government employee (as
defined in section 2105 of title 5, United States Code), except as other-
wise provided in [S]ection 44919 or 44920.” Thus, Sec. 44901(a)
contemplates that screening will be done by Federal employees as well
as employees of private security firms, who carry out screening pursu-
ant to Sec. 44919 or 44920. Additionally, private employees are clearly
not Federal employees because they do not meet the definition of “em-
ployee” codified in Sec. 2105 of Title 5, United States Code. The
language of Sec. 44901 appears to specifically remove privately-
employed screeners from the boundaries of Federal Government ser-
vice, and thereby removes them from the application of the annotation
to Sec. 44935.
20 See 5 U.S.C. § 7116(b)(7).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD452
Congress was well aware of this disparity, so it indis-
putably denied the right to strike to both federally- and
privately-employed screeners, deeming it to be incom-
patible with national security interests. The reasonable
inference is that Congress knew that, absent legislation,
privately-employed screeners would have the right to
strike. Phrased differently, Congress was aware that pri-
vately-employed screeners are covered by the Act.
Additionally, a fundamental principle of statutory con-
struction is that statutes are to be read so as to render all
of their provisions meaningful. Mail Order Assn. of
America v. Postal Service, 986 F.2d 509, 515 (D.C. Cir.
1993). If, however, the annotation to Section 44935
were read to apply to private screeners then a portion of
Section 44919(f) (and Sec. 44920 (c)) would be rendered
meaningless. The annotation to Section 44935 concludes
with the sentence: “The Under Secretary shall establish
levels of compensation and other benefits for individuals
so employed.” While the under secretary clearly has
authority to establish the salary and benefits for Feder-
ally-employed screeners, he does not have authority to
establish the salary and benefits for privately-employed
screeners. Section 44919(f) provides that qualified pri-
vate-screening companies must “provide compensation
and other benefits to such individuals that are not less
than the level of compensation and other benefits pro-
vided to such Federal Government personnel in accor-
dance with this chapter.” If the annotation to Section
44935 applied to private screeners, then the under secre-
tary would have the authority to establish the salary and
benefits for privately employed screeners, contradicting
and rendering meaningless Section 44919(f).21
C. Legislative History
The legislative history of the annotation to Section
44935 also supports our analysis. Senator McCain added
the annotation to Section 44935 as an amendment shortly
after the bill’s introduction. The amendment’s purpose
was “[t]o authorize the employment, suspension, and
termination of airport passenger security screeners with-
out regard to the provisions of title 5, United States
Code, otherwise applicable to such employees.” See 147
Cong. Rec. 10,520 (purpose read into the record by the
assistant legislative clerk). Title 5 contains all of the
Civil Service provisions governing Federal employees
including the FSLMRS. The amendment was agreed to
without objection and adopted. Id. The stated purpose

21 See Management Training Corp., 317 NLRB 1355, 1356 (1995),
citing Dynaelectron, 286 NLRB 302 (1987) (“Consequently, as there
was no restriction on the maximum amount of wages the employer
could pay, the Board reasoned that the employer was free to compen-
sate its employees at whatever level it wished, subject only to the mini-
mums specified in the contract.”).
and lack of objection strongly suggest that the Senate
understood that the annotation provided the under secre-
tary with exclusive authority over the terms and condi-
tions of employment for Federal airport screeners.
Further, in arguing that the term “Federal service” in
Section 44935 should be read to encompass all screener
employees, the Employer cites to amici curiae Represen-
tative Mica and Former Majority Leader Armey’s dis-
cussion of the ATSA conference report. H.R. Conf. Rep.
No. 107–296 (2001).22 Both Representative Mica and
Former Majority Leader Armey quote the following sen-
tence from the report: “The Conferees recognize that, in
order to ensure that Federal screeners are able to provide
the best security possible, the Secretary must be given
wide latitude to determine the terms of employment of
screeners.” Id. at 64. They contend that by using the
term “Federal screeners,” the Conferees differentiated
between the “pre-9/11” aviation security model, under
which air carriers were responsible for screening passen-
gers, and the “post-9/11” screening model, under which
this function became the responsibility of the Federal
Government.
Nevertheless, Representative Mica’s and Former Ma-
jority Leader Armey’s interpretation of the conference
committee report is ultimately unhelpful in trying to in-
terpret the words “Federal service” as used in ATSA.
First, while committee reports can be helpful tools for
interpreting statutes, they do not embody the law.
Abourezk v. Reagan, 785 F.2d 1043, 1054 fn. 11 (D.C.
Cir. 1986). Second, the conference report does not di-
rectly address the term “Federal service” as used in Sec-
tion 44935. The Employer would have us equate “Fed-
eral screeners” with “Federal service.” While it is per-
missible to use a committee report to interpret unclear
language contained in the statute, the Employer’s desired
interpretation would go too far. In essence, we would
have to accept amici curiae’s interpretation of the words
“Federal screeners” in the committee report and then use
that interpretation to interpret the words “Federal ser-
vice” in the statute. This “double interpretation” is al-
most entirely divorced from the text of the committee
report and statute. We have been cautioned that we can-
not treat the language in a committee report as a statutory
provision and then use statements by individual represen-
tatives to “interpret” that language and give it the force
of law. See Electrical Workers Local 474 v. NLRB, 814
F.2d 697, 715 (D.C. Cir. 1987). The Employer’s pro-
posed interpretation does essentially just that by treating
the committee report words “Federal screeners” the same

22 The conference committee report did not make any changes to or
discuss any of the language in Sec. 44935.
FIRSTLINE TRANSPORTATION SECURITY 453
as the statutory words “Federal service” and then using
the amici curiae’s interpretation to give it the force of
law.
III.
The Employer and certain amici curiae argue that even
if the under secretary’s memorandum does not specifi-
cally preclude the Board from asserting jurisdiction, the
Board should decline to assert jurisdiction in the interest
of national security. The Board has been confronted with
issues concerning national security and national defense
since its early days. Our examination of the relevant
precedent reveals that for over 60 years, in times of both
war and peace, the Board has asserted jurisdiction over
employers and employees that have been involved in
national security and defense. We can find no case in
which our protection of employees’ Section 7 rights had
an adverse impact on national security or defense. Our
jurisprudence establishes that with regard to national
security and defense, employee “[s]elf-organization for
collective bargaining is not incompatible with efficient
and faithful performance of duty.” Dravo Corp., 52
NLRB 322, 327 (1943).23
During World War II the Board exercised jurisdiction
innumerable times in the name of national security and
defense. For example, in Chrysler Corp., 44 NLRB 881
(1942), the employer manufactured war material for the
U.S. Government. The petitioner sought to organize the
employer’s plant-protection forces. Plant-protection em-
ployees guarded the employer’s property against espio-
nage, theft, trespass, and fire and accident hazards. They
enforced safety and disciplinary regulations. They exam-
ined packages leaving and entering the plants. They in-
vestigated and reported to the military authorities occur-
rences which aroused their suspicion. The Board re-
marked that: “The present production of war materials at
the Company’s plants increases the importance of their
work and their responsibilities.” Id. 884–885. The War
Department issued a directive, making plant-protection
employees at plants producing war materials civilian
auxiliaries of the military police. Under appropriate
Army supervision, the employees were trained and
equipped to meet the additional responsibility placed
upon them. The employer contended that the Board
should dismiss the case on the ground that the organiza-
tion of plant-protection employees and their affiliation

23 Our dissenting colleague remarks that in some of the cases cited
below, the Board’s jurisdiction was not at issue. While this may be
true, the cases illuminate how the Board has traditionally dealt with
issues surrounding national security and defense. Moreover, these
cases involved industries and employees that were intimately connected
to vital national interests, and history reflects that the application of the
Act in those cases did not harm national security.
with the same union which represented production and
maintenance employees, whose activities they watched
and guarded, would materially lessen the efficiency of
the former.24 The Board found no merit in the em-
ployer’s contention. The Board stated:
We are mindful of the increased responsibilities placed
upon plant-protection employees in wartime, but the
practices and procedures of collective bargaining are
flexible, and may make full allowance for such added
responsibilities. . . . In any event, the remedy for ineffi-
ciency or willful disregard or neglect of duty on the
part of the plant-protection employees lies implicitly in
the power of the Company to discipline or discharge
them and in the power of the military authority to take
all necessary steps to protect the public interest. We
find, therefore, no reason to deny the request of the
Company’s plant-protection employees to constitute a
separate bargaining unit and to deny them, as such, the
right to bargain collectively with their employer
through a representative of their own choosing. [Id. at
886.]
In Budd Wheel Co., 52 NLRB 666 (1943), the em-
ployer manufactured shells and truck wheels, hubs,
drums, and brake parts for the U.S. Government. The
union sought to represent the employer’s plant protection
employees. The employer advanced numerous reasons
why the plant-protection employees should not be able to
organize. The Board rejected all of the employer’s ar-
guments. First, the employer contended that the guards
were auxiliaries to the militarized police. The Board
responded: “We have held in numerous cases that this
change in the status of guards, growing out of the war,
does not deprive them of the rights of collective bargain-
ing guaranteed to employees under the Act. In the in-
stant case, the Company’s peace-time control over its
guards has not been altered materially.” Id. at 669. Sec-
ond, the employer contended that it was contrary to pub-
lic policy, especially in time of war, to extend the protec-
tion of the Act to guards. The Board responded: “No
evidence is offered by the Company in support of this
proposition. The fact that the guards are now engaged in
protecting property of the U.S. Government is not in it-
self any reason for denying the rights of collective bar-
gaining to such employees.” Id. at 670. Third, the em-

24 We are aware, of course, that all of the World War II era cases
arose prior to the enactment of Sec. 9(b)(3). Prior to Sec. 9(b)(3) the
Board had consistently permitted militarized plant guards to be repre-
sented, albeit in a separate bargaining unit, by the same labor organiza-
tions which also represented the employer’s production employees.
See, e.g., Phelps-Dodge Copper Products Corp., 41 NLRB 973 (1942);
Armour & Co., 63 NLRB 1200 (1945).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD454
ployer contended that it would not effectuate the policies
of the Act to require the company to bargain collectively
with the guards or with the union as the representative of
the guards. The Board responded:
The declared policy of the Act is “to eliminate the
causes of certain substantial obstructions to the free
flow of commerce and to mitigate and eliminate these
obstructions when they have occurred.” Among the
obstructions set forth in the Act are “strikes and other
forms of industrial strife or unrest” and “inequality of
bargaining power.” It can hardly be seriously con-
tended that such obstructions result only from conflict
between production employees and the employer. Nor
do we believe that the war has eliminated all these ob-
structions; on the contrary, strife and unrest and ine-
quality of bargaining power are likely to continue in the
absence of collective bargaining, particularly in the face
of self-imposed limitations on the right to strike and, in
the case of militarized guards, the necessary restrictions
imposed by the Government. [Id.]
Finally, the employer contended that it was inconsistent
with the prosecution of the war effort to order it to bargain
collectively with its guards. The Board responded: “In
view of what has been said in answer to preceding conten-
tions, this argument is unpersuasive. An efficient prosecu-
tion of the war effort demands the preservation of the right
to collective bargaining, not its destruction.” Id.
In 1945, the Board dealt directly with the issue of the
application of the Act during wartime. In Bethlehem
Steel Co., 61 NLRB 892 (1945), the employer manufac-
tured structural steel, most of which was ultimately used
in the war effort. The union sought to represent all
guards at the employer’s Chicago plant. The employer
contended that the unit of guards would not effectuate
the purposes of the Act. The Board rejected the em-
ployer’s contention. The Board stated:
We are persuaded that the unit sought is appropriate
and will fully effectuate the policies of the Act. In
reaching this conclusion, we are not unmindful that this
country is at war and the Company is engaged in war
production, and we have fully considered the national
welfare. That steady and unimpeded flow of com-
merce which the Act is designed to maintain by the en-
couragement of the orderly procedures of collective
bargaining is doubly essential in time of war. It is in
keeping with the policies of the Act and it is in the pub-
lic interest to foster and protect collective bargaining by
guards, thereby promoting a practice necessary to the
amicable settlement of labor disputes and eliminating
obstructions to commerce. [Id. at 896.]
In Rohm & Haas Co., 60 NLRB 554 (1945), the Board
made another observation about collective bargaining
during wartime:
During this war period, militarized plant-protection
employees, to an even greater extent than other em-
ployees engaged in war production, have surrendered
their traditional economic weapons, and submitted to
novel restraints upon their freedom to act in furtherance
of their interests as wage earners. Consequently, their
exercise of the right to self-organization and collective
bargaining, guaranteed by the Act to all employees as a
means of eliminating and preventing obstructions to
commerce, assumes particular importance to the na-
tional welfare, for the collective bargaining process is
the only orderly and peaceful way in which such em-
ployees can adjust their employment problems. To
close that way would be to create an intolerable threat
to war production. [Id. at 556–557.]
In fact, the Board specifically ruled that the exigencies
of World War II required an expansion, not erosion, of
collective-bargaining rights as the best means for achiev-
ing stable labor relations and the free flow of commerce.
In Taylor Forge & Pipe Works, 58 NLRB 1375, 1378–
1379 (1944), the Board expanded the certification year of
the incumbent union specifically because of “the exigen-
cies of war-time labor relations.”
After the War, the Supreme Court issued opinions in
two cases that vindicated the Board’s wartime jurispru-
dence. See NLRB v. E. C. Atkins & Co., 331 U.S. 398
(1947); NLRB v. Jones & Laughlin Steel Corp., 331 U.S.
416 (1947). The Jones & Laughlin Court observed that
“in this nation, the statutory rights of citizens are not to
be readily cut down on pleas of military necessity. . . .”
331 U.S. at 426. In E. C. Atkins, the Court agreed with
the Board that there was no conflict between the unioni-
zation of plant guards on one hand and their loyalty and
efficiency on the other. 331 U.S. at 404–405.
During the Korean War and the early years of the
“Cold War,” the Board continued to follow the same
practice. In General Electric Co., 85 NLRB 1316
(1949), the employer produced atomic energy for the
sole use of the Government. The Board rejected the em-
ployer’s contention that due to national security con-
cerns, the plant patrolmen should not be allowed to en-
gage in collective bargaining.
Similarly in 1954, the Board recognized the value of
asserting jurisdiction over defense-related industries be-
cause the Act provides mechanisms for enhancing indus-
trial stability and deterring labor strife. In Maytag Air-
craft Corp., 110 NLRB 594, 595 (1954), the Board reit-
erated that it is precisely because of the potential effect
FIRSTLINE TRANSPORTATION SECURITY 455
upon the national interest that the Board should exercise
jurisdiction over defense-related contracts.
In Ready Mixed Concrete & Materials, Inc., 122
NLRB 318, 320 (1958), the Board determined once and
for all that it would best effectuate the policies of the Act
“to assert jurisdiction over all enterprises, as to which the
Board has statutory jurisdiction, whose operations exert a
substantial impact on the national defense, irrespective of
whether the enterprise’s operations satisfy any of the
Board’s other jurisdictional standards.” In adopting this
standard the Board noted its “special responsibility as a
Federal agency to reduce the number of labor disputes
which might have an adverse effect on the Nation’s de-
fense effort.” Id.
Since that time, the Board has exercised jurisdiction
over innumerable employers whose operations exert a
substantial impact on national defense and security. See,
e.g., Aerospace Corp., 331 NLRB 561 (2000) (research
and development for military space-related programs);
General Security Services Corp., 323 NLRB 540 (1997),
enf. denied on other grounds 162 F.3d 437 (6th Cir.
1998) (security services at Federal courthouses); Old
Dominion Security, 289 NLRB 81 (1988) (security ser-
vices for U.S. Navy); Mason & Hanger Co., 270 NLRB
383 (1984), enfd. 789 F.2d 1465 (10th Cir. 1986) (secu-
rity services at Los Alamos National Laboratories);
McDonnell Douglas Corp., 240 NLRB 794 (1979)
(manufacturer of fighter planes and various types of mis-
siles); Champlain Security Services, 243 NLRB 755
(1979) (security services for the U.S. Coast Guard);
Beiser Aviation Corp., 135 NLRB 399 (1962) (pilot
training and aircraft maintenance for military); Plumbers
Local 44 (MacDonald-Scott & Associates), 131 NLRB
787 (1961) (construct and install Titan missile facilities);
Texas-Zinc Minerals Corp., 126 NLRB 603 (1960) (op-
erate uranium concentrate mill pursuant to a contract
with the Atomic Energy Commission). This practice has
continued after September 11, 2001. See, e.g., Baywatch
Security & Investigations, Inc., 337 NLRB No. 70 (2001)
(not reported in Board volumes.) (security services to the
U.S. Department of the Army’s Longhorn Army Ammu-
nition Plant).
As the foregoing precedent establishes, the Board has
not asserted national security or defense as a reason to
deny employees their Section 7 rights to organize and
bargain collectively. Of course, we recognize the new
challenges that living in a post-September 11 world pre-
sent, and we recognize, as our dissenting colleague
points out, that in none of the above-cited cases did the
employees have duties indistinguishable from Federal
employees who lacked collective-bargaining rights; how-
ever, we do not think that these facts fatally undermine
the Board’s reasoning and warrant a wholesale rejection
of over 60 years worth of precedent.25
The Employer also argues that there should be no dis-
parity between screeners in the Federal service and those
in private employment. This contention merits two dif-
ferent responses. First, allowing private screeners to be
represented for the purposes of collective bargaining will
not create disparate security standards among the na-
tion’s airports. As confirmed in the record, the security
standards for screening operations are entirely at the di-
rection of the TSA and will remain so. The minimum
employment standards, equipment used, and procedures
and protocols followed are identical between the two
groups. In 2004, as required by law, the TSA analyzed
the pilot program to determine if the private screeners
delivered the same level of security and customer service
as Federal screeners. The TSA hired independent con-
sultants to conduct a study, and it was determined that
the private screeners were able to meet the same stan-
dards.
Second, it is undeniable that if private sector employ-
ees are allowed to organize and bargain collectively,
there may well be disparities in the terms of employment
between that group and TSA employees. Such dispari-
ties, however, are consistent with the design of the PP5
pilot program and the “opt-out” program. We recognize
that by Federalizing airport security screening Congress
intended to fundamentally change the way security
screening was done across the nation. However, Con-
gress itself initially did not agree how to best accomplish
this goal. The Senate thought that security screening
should be carried out by Federal employees and the
House thought that screening should be carried out by
deputized private-sector employees.26 Pursuant to a sub-
sequent compromise, the bulk of airport security screen-
ing was federalized but the PP5 pilot program and the
“opt-out” programs were created. These programs were
created to allow Congress to compare the efficacy of
Federal screening and private screening with the ultimate
goal being to expand the “opt-out” program if it was suc-
cessful.
Further, the Employer argues that security and safety
concerns would not be fully provided for in a union set-
ting. However, we do not view the assertion of jurisdic-
tion as incompatible with the maintenance of national

25 See ITT Industries, 341 NLRB 937, 941 (2004) (“We are mindful
that our nation faces significant risks. We are equally mindful of our
responsibility to protect the statutory rights of employees at such time,
and at all times.”).
26 See Aviation Security Act, S. 1446, 107th Congress, Sec. 1080
and Secure Transportation for America Act of 2001, H.R. 3150, 107th
Cong., Sec. 102.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD456
security requirements.27 Unionism and collective bar-
gaining are capable of adjustments to accommodate the
special functions of the security screeners, and the regu-
lations set forth in the ATSA already limit the collective-
bargaining rights of security screeners. Thus, the Em-
ployer’s employees are forbidden from striking and the
Employer and the Petitioner will not be able to bargain
over many mandatory subjects that would normally be
the subject of bargaining in an unregulated private indus-
try. Additionally, other airport/airline personnel includ-
ing pilots, flight attendants, airline mechanics, and others
in the airline industry who have critical security respon-
sibilities have the right to bargain collectively under the
Railway Labor Act.28 Consequently, any argument by
the Employer about the potential detrimental effects of
unionization is speculative. The Supreme Court’s con-
clusion in Jones & Laughlin is just as applicable to this
case:
Union membership and collective bargaining are capa-
ble of being molded to fit the special responsibilities of
deputized plant guards and we cannot assume, as a
proposition of law, that they will not be so molded. If
there is any danger that particular deputized guards
may not faithfully perform their obligations to the pub-
lic, the remedy is to be found other than in the whole-
sale denial to all deputized guards of their statutory
right to join unions and to choose freely their bargain-
ing agents. [331 U.S. at 430.]
Finally, prudence cautions against crafting, as some
amici curiae advocate, a broad and ill-defined national
security exception to the Board’s jurisdiction. Such an
exception would threaten the general application of the
Act to government contractors, depriving many classifi-
cations of workers the statutory protection they have long
been afforded. Ultimately, of course, it is within the
province of Congress to restrict the jurisdiction of the
Board with respect to certain classifications of employ-
ees in the interests of national security. We perceive no
such Congressional limitation in the ATSA.
IV.
Relying on Admiral Loy’s memorandum, our dissent-
ing colleague contends that the government official en-
trusted with ultimate responsibility for airport security
has determined that the security screening function that is

27 See Joseph Slater, Homeland Security v. Workers’ Rights? What
the Federal Government Should Learn from History and Experience,
and Why, 6 UPAJLEL 295, 329 (2004) (“Advocates of eliminating
worker rights have echoed outdated, inaccurate stereotypes of unions as
inherently inefficient without supporting evidence.”).
28 Railway Labor Act, 45 U.S.C. §§ 151–163, 181–188, 44 Stat. 577
(1926). The RLA covers private sector airlines and provides full col-
lective-bargaining rights. 45 U.S.C. § 152 (2000).
performed by privately-employed screeners is incom-
patible with unionization and collective bargaining. He
would defer to that determination. We disagree for two
reasons.
First, by concentrating only on the function of the em-
ployees at issue, our colleague ignores the major differ-
ence between the two groups of employees: that is, one
group is federally employed and the other (much smaller)
group is privately employed. While we recognize that all
screeners perform the same function and are subject to
the same employment standards under the ATSA, the
privately employed employees have additional rights
under the Act, including the right to organize and bargain
collectively, by virtue of their private employment status
and irrespective of their function. That is, as our col-
league acknowledges, the Employer here is an employer
within the meaning of Section 2(2) of the Act, and the
employees here are employees within the meaning of
Section 2(3) of the Act. Congress did not indicate in the
ATSA that it wished to deprive private employees of any
labor law rights—except the right to strike (which it
withheld from all screeners).
It is these rights that are at issue in this dispute. There-
fore, in order to determine whether to assert jurisdiction,
we must look beyond function and examine how the em-
ployees at issue fit within our statutory scheme. When
we do, it becomes apparent that the Employer’s relation-
ship to its employees is similar to the multitude of other
relationships between government contractors and their
employees that are currently governed by the Act.
Second, as discussed more fully above, the ATSA does
not give the under secretary the authority to divest pri-
vately employed screeners of their right to engage in
collective bargaining with their respective employers—
the under secretary only has that authority with regard to
Federally-employed screeners. Thus, as our colleague
acknowledges, despite the under secretary’s determina-
tion regarding Federally-employed screeners, the TSA
has taken an explicit position of neutrality when it comes
to the rights of private screeners. The TSA has made no
pronouncements seeking to eliminate private screeners
from the protections of the Act. Instead, the TSA has
specifically stated that organizing is a matter between
screeners and private employers. Specifically presented
with the opportunity to do so in this case, the TSA did
not ask us to decline to assert jurisdiction in the interest
of national security. Absent such a request, we will ap-
ply the Act to the Employer, as we do to other employers
that fall within our jurisdiction.
Our colleague asserts that the TSA has appropriately
restrained itself from telling the Board how to interpret
and apply the Act and that the Board remains free to give
FIRSTLINE TRANSPORTATION SECURITY 457
effect to the under secretary’s determination in the pri-
vate sector, where the Board (not the TSA) has authority.
However, we find that doing so would be a derogation of
our statutory duty to administer and enforce the Act. As
explained, Congress deliberately created a statutory re-
gime that provides for some security screeners to be em-
ployed in the private sector. Further, since private-sector
employees enjoy the right to bargain collectively under the
Act, Congress presumably knew that private screeners
would be entitled to the protections of the Act. If Con-
gress wanted to exclude private screeners from the Act’s
coverage, it could, and presumably would, have done
so.29 Contrary to our colleague’s contention, however,
Congress has not acted in this sphere. Absent both a
clear statement of Congressional intent and a clear state-
ment from the TSA that would support our refusal to
exercise jurisdiction, we will not create a nonstatutory,
policy-based exemption for private screeners. We see no
compelling reason for us to divest private screeners from
the protections of the Act. Rather, the Employer’s em-
ployees should be able to avail themselves of the rights
afforded them under the Act. In sum, contrary to our
colleague’s view, we find that we should leave the policy
decision to Congress, since the issue is essentially not
one of Federal labor policy, but of national-security pol-
icy.
V.
The Employer and the amici curiae advance two pri-
mary reasons why we should decline to assert jurisdic-
tion. The first reason is based on the ATSA and its legis-
lative history and the second reason is grounded in policy
considerations. As demonstrated above, neither of these
reasons withstands scrutiny. Consequently, we affirm
the Regional Director’s decision for the reasons stated
herein and remand this case to him for further appropri-
ate action.
ORDER
The Regional Director’s Decision and Direction of
Election is affirmed. This proceeding is remanded to the
Regional Director for further appropriate action consis-
tent with this Order.
MEMBER KIRSANOW, dissenting.
I agree with my colleagues that the Board is not statu-
torily barred from asserting jurisdiction over private em-
ployers of airport security screeners. As a matter of pub-
lic policy, however, I would decline to assert jurisdiction
over such employers in the interests of national security.

29 Congress could have vested the under secretary with authority
over the “terms and conditions of employment” of private screeners
and/or altered the parameters of the PP5 and “opt-out” program.
I would defer to the finding of the Federal official en-
trusted with responsibility over airport security, which is
that unionization and collective bargaining are incom-
patible with the critical national-security responsibilities
of individuals carrying out the security-screening func-
tion.
Immediately after the terrorist attacks of September
11, 2001, Congress federalized airport security by enact-
ing the Aviation and Transportation Security Act
(ATSA), which created the Transportation Security Ad-
ministration (TSA). ATSA authorizes the head of the
TSA, inter alia, to “fix the compensation, terms, and
conditions of employment” of Federal airport security
screeners. 49 U.S.C. § 44935 Note. Pursuant to that
authority, Under Secretary of Transportation for Security
James Loy issued the following memorandum:
By virtue of the authority vested in the Under Secretary
of Transportation for Security in Section 111(d) of the
Aviation and Transportation Security Act, Pub. Law
No. 107-71, 49 U.S.C. § 44935 Note 2001, I hereby de-
termine that individuals carrying out the security
screening function under section 44901 of Title 49,
United States Code, in light of their critical national se-
curity responsibilities, shall not, as a term or condition
of their employment, be entitled to engage in collective
bargaining or be represented for the purpose of engag-
ing in such bargaining by any representative or organi-
zation.
The Federal Labor Relations Authority upheld Under Secre-
tary Loy’s determination.1
Thus, the Government official entrusted with ultimate
responsibility for airport security has determined that
unionization and collective bargaining are incompatible
with the “critical national security responsibilities” of
“individuals carrying out the security screening function
under [49 U.S.C.] section 44901.” Individuals carrying
out the security-screening function under Section 44901
are Federal employees; ATSA also provides for pri-
vately-employed security screeners under 49 U.S.C. Sec-
tions 44919 and 44920. It is undisputed, however, and
my colleagues acknowledge, that privately employed
screeners and federally-employed screeners have identi-
cal duties. Both sets of employees “carry[ ] out the secu-
rity screening function.” There is no difference whatso-
ever between the security-screening function “under sec-
tion 44901” and the security-screening function under
Sections 44919 and 44920. And it is the carrying out of

1 U.S. Department of Homeland Security, Border & Transportation
Security Directorate, Transportation Security Administration, 59 FLRA
423 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD458
that function that the under secretary has determined to
be incompatible with unionization and collective bar-
gaining. I would defer to that determination.
I recognize that, when directly asked whether pri-
vately-employed security screeners may organize, the
TSA has taken a position of neutrality. This is under-
standable. The organizational rights of privately-
employed security screeners are governed by the Act,
which is administered by this agency, not by the TSA.
Just as the Board would decline to instruct the TSA in
the proper interpretation and application of the ATSA, so
also the TSA has appropriately restrained itself from tell-
ing the Board how to interpret and apply the Act. None-
theless, Under Secretary Loy’s determination is that un-
ionization and collective bargaining are incompatible
with the security-screening function, which is performed
by privately-employed screeners in precisely the same
way as by federally-employed screeners. That determi-
nation speaks for itself, notwithstanding the TSA’s offi-
cial neutrality on an issue outside its jurisdiction.
My colleagues cite numerous cases, dating from the
World War II era to the present, that they say stand for
the proposition that the Board has consistently asserted
jurisdiction over employers involved in national security
and defense. In many of those cases, however, the
Board’s jurisdiction was not even at issue.2 In those
cases cited by the majority in which a jurisdictional issue
is presented, none presents the unique issue before the
Board in this case: whether to assert jurisdiction not-
withstanding a determination by the responsible Federal-
agency head that the critical national-security function
performed by the affected employees precludes unioniza-
tion and collective bargaining.3

2 See Chrysler Corp., 44 NLRB 881 (1942) (presenting appropriate
bargaining unit issue); Dravo Corp., 52 NLRB 322 (1943) (same);
Taylor Forge & Pipe Works, 58 NLRB 1375 (1944) (presenting issue
of whether extension of certification year warranted due to delay result-
ing from submission of dispute to War Labor Board); Rohm & Haas
Co., 60 NLRB 554 (1945) (presenting appropriate bargaining unit
issue); Bethlehem Steel Co., 61 NLRB 892 (1945) (same); General
Electric Co., 85 NLRB 1316 (1949) (same); McDonnell Douglas
Corp., 240 NLRB 794 (1979) (jurisdiction admitted); Mason & Hanger
Co., 270 NLRB 383 (1984) (jurisdiction admitted), enfd. 789 F.2d 1465
(10th Cir. 1986); General Security Services Corp., 323 NLRB 540
(1997) (jurisdiction admitted), enf. denied 162 F.3d 437 (6th Cir.
1998); Aerospace Corp., 331 NLRB 561 (2000) (presenting appropriate
bargaining unit issue).
3 See Budd Wheel Co., 52 NLRB 666 (1943) (rejecting claim of lack
of jurisdiction as contradicted by respondent’s prior stipulation); May-
tag Aircraft Corp., 110 NLRB 594 (1954) (presenting issue of quantum
of commerce necessary to meet jurisdictional threshold); Ready Mixed
Concrete & Materials, Inc., 122 NLRB 318 (1958) (same); Texas-Zinc
Minerals Corp., 126 NLRB 603 (1960) (presenting issue of whether
Board has jurisdiction over mill located on tribal lands); Plumbers &
Steamfitters Local 598 (Kennewick), 131 NLRB 787 (1961) (routinely
applying Ready Mixed Concrete standard); Beiser Aviation Corp., 135
My colleagues say that creating a national-security ex-
ception will open the floodgates and potentially “threaten
the general application of the Act to Government con-
tractors.” I am not advocating a national-security excep-
tion potentially applicable to government contractors
generally. My position is based on two circumstances
never before presented to the Board and unlikely ever to
be presented again: Federal and private employees per-
forming indistinguishable functions deemed critical to
national security, and a finding by the responsible agency
head that these functions are incompatible with collective
bargaining. Declining jurisdiction under these unique
circumstances would not set the Board on a slippery
slope.
The majority says that I ignore the fact that the secu-
rity screeners in this case are privately employed and
therefore possessed of rights under the Act. They ob-
serve that, because Congress prohibited all screeners
(Federal and private) from striking, it can be inferred that
Congress knew that privately-employed screeners would
otherwise have that right as employees covered by the
Act. I do not ignore those facts. I acknowledge that
there is no statutory bar to asserting jurisdiction here. I
would decline to do so, however, because I would defer
to the under secretary’s determination that the screening
function and unionization are incompatible. My col-
leagues criticize me for concentrating on the screening
function. They say we must “look beyond function.” In
my view, the under secretary’s determination precludes
looking beyond function. This is not a situation in which
national security and Section 7 rights may be harmonized
and reconciled. A contrary determination has been
made. Thus, although I am deeply mindful of employee
rights, in this highly unusual and perhaps even unique
case I cannot accord them primacy. National security is
the trump card, and it has been played; the Board should
fold its hand.
Additionally, unlike my colleagues, I would not wait
to do so until Congress explicitly removes privately em-
ployed screeners from the Act’s coverage. Congress has
acted. It vested broad authority over airport security
screening in the under secretary. Acting under that au-
thority, the under secretary has found collective bargain-

NLRB 399 (1962) (same); Champlain Security Services, 243 NLRB
755 (1979) (finding that private employer of guards employed at Coast
Guard installation does not share Coast Guard’s Governmental-entity
exemption under the Act; no claim advanced that privately-employed
guards perform national security function incompatible with exercise of
Sec. 7 rights); Old Dominion Security, 289 NLRB 81 (1988) (finding
that private employer of guards at Navy installation does not share
Navy’s governmental-entity exemption and is not joint employer with
Navy; no claim advanced that privately employed guards perform na-
tional-security function incompatible with exercise of Sec. 7 rights).
FIRSTLINE TRANSPORTATION SECURITY 459
ing and the screening function incompatible. That is
sufficient congressional warrant for the Board to decline
jurisdiction here.
In sum, it has been authoritatively determined that na-
tional security precludes extending organizational rights
to federally-employed airport security screeners. Such a
determination is outside the expertise of the Board. Pri-
vately-employed screeners perform exactly the same
security function as their Federal counterparts. Where
the TSA has closed the front door, the Board should not
open the back door. The Section 7 rights of employees
are vitally important; the imperatives of national security
are of paramount importance. I would decline jurisdic-
tion.