John Gavello and his lawyer, Mary Dryovage, hardly seem like a couple of rabble-rousers. Standing outside the Oakland airport with his arms crossed, the broad-shouldered, shaven-headed Gavello looks like Mr. Clean clad in a dark polo shirt. When he talks about being fired for union organizing in the terminal behind him, it’s not an impassioned speech, but something delivered with a note of wonder — a kind of “how can they do this” tone. He still can’t quite accept that his former employer, the federal government, says he doesn’t have such an ordinary workplace right.
Dryovage, too, can’t quite get the puzzlement out of her voice, or the anger. “How can they be responsible for enforcing labor law,” she asks, “and yet say they don’t have to obey it?”
This should come as no surprise, really. Unions have been banned in the Department of Homeland Security for more than a year. But in this case, apparently, the federal government, the entity responsible for enforcing the union rights of the nation’s workers, has for the first time fired someone for asking people to join one.
In January 2003, the Bush administration — by way of Admiral James Loy, head of the Transportation Security Administration — banned collective bargaining for forty-thousand-plus federal airport screeners. “Fighting terrorism,” Loy declared at the time, “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.”
In the private sector, and much of the public sector, Loy’s action would have been illegal. Nongovernment workers won the right to unionize under the 1935 National Labor Relations Act. Federal employees were later granted the same right under the Civil Service Reform Act, which took effect in January 1980. Since then all federal employees, barring soldiers, have been able to bargain with their bosses — until President Bush convinced Congress to change the rules.
Following 9/11, the terrain for US labor relations changed dramatically. Legislators modified Title 5 of the Civil Service Reform Act, and many workers’ rights were stripped away. Tens of thousands of private-sector screeners were fired after the newly created Transportation Security Administration took over. The fledgling agency refused to hire immigrants, who made up a majority of the original screeners, and after it hired the new crop, it prohibited union activity. TSA reps justify the ban using what amounts to slogans: “Collective bargaining would be incompatible with the nation’s safety,” spokesman Chris Rhatigan says. “Security is paramount, and collective bargaining could cripple the system,” notes another TSA rep, Nico Melendez.
In response to such sentiments, Gavello’s lawyer struggles to keep her cool. “What they really did,” she says, “was take away the system that gave people a feeling of fairness at work — 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.”
When Loy struck down the unions a year and a half ago, his 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 airport workers, and other employees were forming organizing committees. The admiral’s edict stopped the drive in its tracks.
Gavello and many of his co-workers still thought a union was needed. Not long after he was hired last summer as an Oakland screener, Gavello noticed that some workers had to wait weeks to get their paychecks. And when he was asked to work on Sundays, the agency refused him overtime pay. “People were afraid to complain,” he recalls, “because management would pull them in, accuse them of making mistakes, and interrogate them.”
Last November, Gavello told his immediate superior that he intended to post union literature on the employee bulletin board. The boss, he says, had no problem with it. Someone, however, must have checked in with Washington, because things deteriorated rapidly. On November 20, he got a written warning that stated, “You are not allowed to enter into any discussion or conversation about your union, or solicit membership in or for any union … while on duty as a TSA Transportation Security Screener.”
The next day, supervisors accused him of talking union with another worker. “I told them I’d done nothing wrong,” Gavello says. He asked for a witness to sit in while his bosses questioned him, a right then guaranteed even to nonunion workers under the so-called Weingarten Rule issued by the National Labor Relations Board in the 1970s. Gavello’s request was denied, and he was suspended for two weeks. Early this year, the Bush administration’s appointees to the labor board announced that the Weingarten Rule no longer applies to nonunion workers.
The TSA began building a file on Gavello, but he continued to protest shortcomings in the workplace. On February 26, he faxed a copy of a complaint to the TSA in Washington. He also sent a copy to Gony Frieder, a union lawyer he’d been consulting regarding his suspension. Calling that action a breach of security, the agency fired him. “That’s ridiculous,” Dryovage says. “They can’t fire someone for seeking the advice of an attorney. It’s clear he was fired for union activity. His supervisor even told him they were watching him, and would get him for it.”
TSA spokesman Melendez wouldn’t comment directly on the case. “Screeners can join unions,” he contends. But, he adds, “they cannot engage in collective bargaining, which is incompatible with national security.” Melendez, however, could not offer an example of how a union or contract would jeopardize security.
The process turned even more Alice-in-Wonderland after Gavello’s lawyer sued the government in US District Court in April, claiming that her client’s termination violated his rights to free speech and association. The government responded in a motion that federal employees can’t use the courts to resolve workplace problems; instead, they are required to use civil-service grievance procedures. But in practically the next sentence, TSA attorneys argued that Gavello can’t do that either: The same order that banned collective bargaining also suspended grievance procedures and whistle-blower protections.
Ken Jacobs, deputy chair of the Center for Labor Research and Education at UC Berkeley, says Gavello’s case “falls within a concerted strategy by the federal government to restrict union rights.” He views the elimination of Weingarten rights and the ban on union activity by airport screeners as connected. “The strategy is to take away labor rights,” he says. “The method may vary, but the trend is the same.”
If so, this case, now in the hands of US District Court Judge Claudia Wilken, may prove key in determining what the government can get away with in the future. “The administration has plans on the drawing board to expand this experience to other federal agencies,” Dryovage claims. “The Defense Department, with an even larger workforce, is next in line.”
Under normal circumstances, the lawyer asserts, the courts would certainly recognize her client’s claim. Then again, were these normal times, Admiral Loy probably would have been laughed at for asserting that a union would jeopardize national security. “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.”