<DOC>
[108th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:95409.wais]
THE KEY TO HOMELAND SECURITY: THE NEW HUMAN RESOURCE SYSTEM
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON CIVIL SERVICE
AND AGENCY ORGANIZATION
of the
COMMITTEE ON GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
and the
SUBCOMMITTEE ON OVERSIGHT OF GOVERNMENT
MANAGEMENT, THE FEDERAL WORKFORCE, AND
THE DISTRICT OF COLUMBIA
of the
COMMITTEE ON GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
__________
FEBRUARY 25, 2004
__________
Serial No. 108-183
__________
Printed for the use of the Committees on Government Reform and
Governmental Affairs
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
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95-409 WASHINGTON : 2004
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COMMITTEE ON GOVERNMENT REFORM
TOM DAVIS, Virginia, Chairman
DAN BURTON, Indiana HENRY A. WAXMAN, California
CHRISTOPHER SHAYS, Connecticut TOM LANTOS, California
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
JOHN L. MICA, Florida PAUL E. KANJORSKI, Pennsylvania
MARK E. SOUDER, Indiana CAROLYN B. MALONEY, New York
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
DOUG OSE, California DENNIS J. KUCINICH, Ohio
RON LEWIS, Kentucky DANNY K. DAVIS, Illinois
JO ANN DAVIS, Virginia JOHN F. TIERNEY, Massachusetts
TODD RUSSELL PLATTS, Pennsylvania WM. LACY CLAY, Missouri
CHRIS CANNON, Utah DIANE E. WATSON, California
ADAM H. PUTNAM, Florida STEPHEN F. LYNCH, Massachusetts
EDWARD L. SCHROCK, Virginia CHRIS VAN HOLLEN, Maryland
JOHN J. DUNCAN, Jr., Tennessee LINDA T. SANCHEZ, California
NATHAN DEAL, Georgia C.A. ``DUTCH'' RUPPERSBERGER,
CANDICE S. MILLER, Michigan Maryland
TIM MURPHY, Pennsylvania ELEANOR HOLMES NORTON, District of
MICHAEL R. TURNER, Ohio Columbia
JOHN R. CARTER, Texas JIM COOPER, Tennessee
MARSHA BLACKBURN, Tennessee ------ ------
------ ------ ------
------ ------ BERNARD SANDERS, Vermont
(Independent)
Melissa Wojciak, Staff Director
David Marin, Deputy Staff Director/Communications Director
Rob Borden, Parliamentarian
Teresa Austin, Chief Clerk
Phil Barnett, Minority Chief of Staff/Chief Counsel
Subcommittee on Civil Service and Agency Organization
JO ANN DAVIS, Virginia, Chairwoman
TIM MURPHY, Pennsylvania DANNY K. DAVIS, Illinois
JOHN L. MICA, Florida MAJOR R. OWENS, New York
MARK E. SOUDER, Indiana CHRIS VAN HOLLEN, Maryland
ADAH H. PUTNAM, Florida ELEANOR HOLMES NORTON, District of
NATHAN DEAL, Georgia Columbia
MARSHA BLACKBURN, Tennessee JIM COOPER, Tennessee
Ex Officio
TOM DAVIS, Virginia HENRY A. WAXMAN, California
Ron Martinson, Staff Director
B. Chad Bungard, Deputy Staff Director and Chief Counsel
Reid Voss, Clerk
Tania Shand, Minority Professional Staff Member
COMMITTEE ON GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ARLEN SPECTER, Pennsylvania RICHARD J. DURBIN, Illinois
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois MARK DAYTON, Minnesota
JOHN E. SUNUNU, New Hampshire FRANK LAUTENBERG, New Jersey
RICHARD C. SHELBY, Alabama MARK PRYOR, Arkansas
Michael D. Bopp, Staff Director and Chief Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Amy B. Newhouse, Chief Clerk
------
OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
GEORGE V. VOINOVICH, Ohio, Chairman
TED STEVENS, Alaska RICHARD J. DURBIN, Illinois
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
ROBERT F. BENNETT, Utah THOMAS R. CARPER, Delaware
PETER G. FITZGERALD, Illinois FRANK LAUTENBERG, New Jersey
JOHN E. SUNUNU, New Hampshire MARK PRYOR, Arkansas
Andrew Richardson, Staff Director
Marianne Clifford Upton, Minority Staff Director and Chief Counsel
Kevin R. Doran, Chief Clerk
C O N T E N T S
----------
Page
Hearing held on February 25, 2004................................ 1
Statement of:
Gage, John, national president, American Federation of
Government Employees; Colleen M. Kelley, national
president, National Treasury Employees Union; and Mike
Randall, president, National Association of Agricultural
Employees.................................................. 80
James, Kay Coles, Director, Office of Personnel Management;
and James Loy, Deputy Secretary, Department of Homeland
Security................................................... 7
Walker, David M., Comptroller General, U.S. General
Accounting Office.......................................... 46
Letters, statements, etc., submitted for the record by:
Davis, Hon. Danny K., a Representative in Congress from the
State of Illinois, prepared statement of................... 28
Gage, John, national president, American Federation of
Government Employees, prepared statement of................ 82
James, Kay Coles, Director, Office of Personnel Management,
prepared statement of...................................... 10
Kelley, Colleen M., national president, National Treasury
Employees Union, prepared statement of..................... 118
Loy, James, Deputy Secretary, Department of Homeland
Security, prepared statement of............................ 22
Randall, Mike, president, National Association of
Agricultural Employees, prepared statement of.............. 136
Walker, David M., Comptroller General, U.S. General
Accounting Office, prepared statement of................... 49
THE KEY TO HOMELAND SECURITY: THE NEW HUMAN RESOURCE SYSTEM
----------
WEDNESDAY, FEBRUARY 25, 2004
House of Representatives, Subcommittee on Civil
Service and Agency Organization, Committee on
Government Reform, joint with the Subcommittee
on Oversight of Government Management, the
Federal Workforce, and the District of
Columbia, Committee on Governmental Affairs,
U.S. Senate,
Washington, DC.
The subcommittees met, pursuant to notice, at 10:05 a.m.,
in room 2154, Rayburn House Office Building, Hon. Jo Ann S.
Davis of Virginia [chairwoman of the Subcommittee on Civil
Service and Agency Organization) presiding.
Present: Mrs. Davis of Virginia, Mr. Mica, Mr. Davis of
Illinois, Ms. Norton, Mrs. Blackburn, and Mr. Van Hollen.
Also present: Senators Voinovich, Lautenberg, and Akaka.
Staff present: Ronald Martinson, staff director; B. John
Landers and Christopher Barkley, professional staff members;
Robert White, director of communications; Reid Voss, clerk;
Tania Shand, minority professional staff member; and Teresa
Coufal, minority assistant clerk.
Senator Voinovich [assuming Chair]. I'd like to explain
that our Chairwoman, Jo Ann Davis, is on the floor doing
something that's very important, getting the GAO bill passed
this morning, something that we just got finished in the
Senate. Hopefully we'll get that done and have the President
sign it and we can move on with some changes in our personnel
system here in the Federal Government.
I am going to make my opening statement and hopefully Jo
Ann will be back. If she's not, then we have a problem, because
I have to leave at 10:30 to go over and cast a vote in the
Senate.
This joint hearing of the Senate and House Subcommittees
with oversight of the Federal work force is extremely
important, for we're examining the new human resources system
for the Department of Homeland Security. When Congress wrote
the Homeland Security Act of 2002, it required that the Office
of Personnel Management and the Department of Homeland Security
collaborate with the Federal employee unions to design a modern
personnel system that meets the mission needs of the
Department. This process has taken over a year, and just last
Friday the administration published the regulations for the new
human resources system for the Department of Homeland Security.
The Department was established to protect the United States
from further terrorist attacks. Make no mistake, the employees
of the Department and the way in which they are managed are
critical to ensuring the operational success of this Department
and the security of the United States. Because September 11
happened a while back, I think we forget, except periodically
when the President issues an alert, that we still have serious
domestic national security problems that need to be addressed.
That's why we've created this new Department.
It is my hope that this human resources system will
facilitate the recruitment and retention of the best and
brightest Americans into the Department. I always stated, if
your business is going to be successful you have to have good
finances and you have to have good people. If you've got both
of those, you're in great shape. We need to do that in the
Federal Government.
It is my hope that this Department will compensate and
treat their employees fairly, that it will provide them the
training they need to reach their full potential and perform
their jobs at the highest level. Training is a high priority
with this Senator and needs to be a much higher priority in the
Federal Government. And we hope that this system will
facilitate productive labor management relations, which are so
important to any successful governmental operation.
I was pleased also that the Homeland Security Act included
several government-wide human capital reform provisions, which
I authored.
As important as this is, the new Homeland Security human
resources system is notable for another reason. It is a
milestone in the evolution of the Civil Service. It is possible
that elements of this human resources system could be applied
elsewhere in the executive branch in the coming years.
Therefore, what the Department of Homeland Security is doing
and the imperative to get it right has implications far beyond
the Department. I know that the unions were concerned with this
legislation for this reason. They realize that once this is all
over, there's a good possibility that other departments in the
Federal Government will be asking for the same kind of
flexibilities that exist in Homeland Security.
Director James and Admiral Loy, I would like to compliment
you for the manner in which you worked to design the new
personnel system. You clearly have taken a thoughtful and
deliberate approach that should serve as an example to others.
I look forward to your testimony and learning the details of
the new human resources system. I would also like to thank Clay
Johnson, the Deputy Director of Management at the Office of
Budget and Management, who is also involved in this important
task.
I must tell you that I was very concerned about the
management function of the Office of Management and Budget. I
always said that there was an OMB, but there was no ``M.'' This
administration tried very hard initially to put an ``M'' into
OMB. From my meeting with him, Clay Johnson seems to get it and
understand that it's important that this be an open process and
that you work with everyone.
I congratulate you on the time you have taken. I know that
everyone is not happy with the result, but the fact of the
matter is that I was concerned that there might be a rush to
get it done in 30 days, publish the regs and go through it. I
think that you really spent a great deal of time trying to do
this the right way, trying to give everybody an opportunity to
share their concerns with you.
For that I thank you very much, because you took care of
something that I was concerned about. I think you
conscientiously did this in a systematic way and tried to be as
sensitive as you could to understanding that if the system
doesn't have the input of the people that are going to be
involved with it, in the long run it may not be a success.
I'm also looking forward to hearing the views of
Comptroller David Walker. Mr. Walker has been a leader on the
human capital issue, both as an advocate of reform in the
Federal Government and as a practitioner of that reform at the
General Accounting Office. And as I said, that's what
Congresswoman Davis is doing today, giving GAO more
flexibility.
As such, his views carry extra weight with me. I was
pleased to introduce and advance this legislation in the
Senate. It's my understanding that similar legislation, is
going to pass this morning.
Last but certainly not least, I'm looking forward to the
testimony of the leaders of the three Federal employee unions
that represent the greatest number of employees in the
Department. My staff and I have enjoyed working with the
presidents of the unions and their staff during my time in the
Senate. I know that they have serious concerns about the new
personnel system.
When the Homeland Security Act was pending in Congress, I
thought it was very important that there be a dialog among the
administration, and the employee unions. In addition, I thought
that the law should allow for third party arbitration of
impasses between labor and management. That wasn't part of the
legislation.
Once the legislation passed, as I mentioned, I was
concerned that the administration might rush and try to
establish the system without conducting dialog, and as I
mentioned, I'm glad that dialog did occur. From what I
understand, there were robust discussions between the
administration and the unions. While I appreciate that there
are real differences, and I've read some testimony that
expressed some real concerns, I'm glad that the dialog
occurred. I hope it served to reduce the number of areas of
disagreement. I'm sure that it did.
The 30 day statutory collaboration period in which the
unions will make their formal requests for changes to the
personnel regulations has begun. I'm interested in learning
what those requested changes will be. In addition, now that it
is over, I'd like to hear the union presidents' evaluation of
the collaborative process of last year.
I might also say that one of the big concerns that the
unions had was that the President might exercise his National
Security Exclusionary Authority. Many of the unions were very
concerned about this. I'm pleased that the President has not
exercised this authoirity, as many said that he would. There's
a provision in the law that says if he does, that it doesn't go
into effect until 10 days notice is given, so that everybody
knows it's going to be happening. It's not going to be
something that's done at 2 a.m. So I'm pleased with that.
Finally, I will be asking all of today's witnesses their
views on next steps. It is likely that additional
administrative or legislative changes will have to be made to
the new system to ensure that it works as it should. I look
forward to working with the administration, Federal employee
unions and my colleagues on this effort.
I ask unanimous consent that all Members have 5 legislative
days to submit written statements and questions for the hearing
record, and that any answers to written questions provided by
the witnesses also be included in the record. Without
objection, so ordered.
I ask unanimous consent that all exhibits, documents and
other materials referred to by Members and the witnesses may be
included in the hearing record and that all Members be
permitted to revise and extend their remarks. Without
objection, so ordered.
Senator Lautenberg and Senator Akaka, I appreciate your
being here. Would you like to make some opening remarks?
Senator Lautenberg. I appreciate that, Mr. Chairman. I
thank you for convening this. I'm always happy to see Admiral
Loy, his first name is Admiral. We can't stop calling him that.
[Laughter.]
Anyway, this is a very complicated situation and I think
that having this hearing at this time is particularly
appropriate. I wasn't here in the Congress when the Homeland
Security Act of 2002 became law. But obviously I had an
interest and have an interest. If I had been here, frankly, I
would have objected to some of the personnel provisions that
are included in the bill, particularly those that denied
employees of DHS the same rights to bargain and to appeal
personnel decisions afforded to other Federal employees.
This notion that somehow or other collective bargaining
rights threaten national security, that Federal employees who
belong to a union are somehow suspect is, I find, deeply
offensive. It's tiring to hear the administration's relentless
attacks on organized labor. One came up the other day regarding
teachers and the education association. We have to look at this
as it affects not only the individuals but the well-being of
our country. We have in the Federal Government, I think, an
unusually talented, committed group of people. And I want to
see that we respect their rights and listen to the things they
have to say.
In the case of the World Trade Center calamity, the first
responders, who were civilians, filed past the victims on the
way down, the way up, they belong to unions. I challenge anyone
to question the commitment or the professionalism or certainly
the bravery of the union members who gave their lives on
September 11 trying to save other people.
I'm a strong believer in protecting the Federal work force.
As someone who has had fairly extensive experience in the
private sector, I can attest to the unique commitment, talent
and spirit of public service that we have in our Federal
employees.
With regard to the new DHS personnel proposal, it was truly
comprehensive. But within the 167 page plan, there are some
troubling and problematic provisions. I'm particularly
concerned with a plan that allows DHS management to install
rules, unilaterally, on the deployment of personnel and the
assignment of work.
I'm also skeptical about the proposed pay for performance
system, which certainly could be subject to political
manipulation. Who's going to make those decisions and who are
they going to talk to as they make those decision can make a
substantial differences in the outcome.
Also, doing away with the normal GS system probably creates
more problems than it solves. The new system, which sets wages
according to the results of annual salary surveys of private
sector workers in different occupations, different regions,
strikes me as almost impossible to carry out in a fair manner.
I think it's unfair to the Federal workers.
There are conditions that may dictate a format in a region.
But we forget that Federal employment often creates more modest
salaries for similar jobs in the public sector than we see in
the private sector. Private sector wages often vary regionally
or fluctuate due to sporadic market changes. And I don't think
that Federal pay scales should be determined by directly
comparing public sector wages to private sector ones. Nor do I
think that this system will effectively draw the Nation's best
and brightest to work at DHS.
Finally, I'm perplexed why TSA employees would be left out
of the plan. What is there about the screeners that makes them
different? Is it because they're brought in, if they are
brought on as a full agency employee, they would have to be
given the right to organize? I hope that's not the case, and I
am anxious to hear from our good friend and distinguished
public servant, Admiral Loy, he's very familiar with TSA, about
whether or not the screeners at airports should be allowed to
organize.
These words aside, I think we share overriding goals, which
are to attract the best human capital to DHS and make the
working conditions at DHS the most effective and productive
that we can for the 180,000 Federal workers who have been
brought together from lots of different agencies and
departments. We want them to feel good about their work so that
their productivity can be at its highest level.
I hope we can work together to fix some of these
problematic components of the new plan. I welcome our
witnesses, and Mr. Chairman, once again I thank you and I
appreciate the opportunity to make my statement.
Senator Voinovich. Senator Akaka.
Senator Akaka. Thank you very much, Mr. Chairman.
I want to say thank you to you for holding today's hearing
on the proposed regulations establishing a new human resources
system for the Department of Homeland Security. Also I want to
say thank you to Chairwoman Jo Ann Davis, who has been
unavoidably detained this morning. She certainly will be here.
I also want to welcome Admiral Loy to the hearing and say
thanks for many things he has done since he has been in this
position. The Homeland Security Act required DHS and the Office
of Personnel Management to work together to propose joint
regulations for the new human resources system. I want to
applaud you, Admiral Loy, and the manner in which you solicited
and gathered input for the joint proposal.
Although I do not agree with all of the provisions of the
proposed regulations, I believe that the open, transparent and
accountable manner in which these regulations were developed
exemplify the level of cooperation and interaction expected
under the Homeland Security Act and what I would look for in
other reform proposals.
The Federal Civil Service is responsible for implementing
and managing Government programs in an effective and responsive
manner. However, defining the proper relationship between the
career Civil Service and elected and appointed officials has
always been a critical issue. We share a common desire to
ensure that all employees are able to do their job without
undue influence.
I would like to remind my colleagues that the Civil Service
Reform Act was passed back there in 1978 to address the various
conflicting responsibilities of the Civil Service Commission,
which was charged with providing equal employment opportunity,
ethics, protecting the merit system, overseeing labor relations
and personnel management. Congress divided the responsibilities
of the Commission because we found that fostering the
principles of modern personnel management was inevitably in
conflict with the commission's role in ensuring the application
of rules and procedures.
The reforms in the CSRA shored up a cornerstone of the
Federal Civil Service system, by ensuring that Federal
employees who are charged with protecting the interests of the
American people have real and meaningful protections. The
passage of the Homeland Security Act in 2002 was to provide
managers with work force flexibility, and not reduce the rights
and protections of the Civil Service. The act required the new
human resources system to be based in merit principles and
provide for collective bargaining.
For DHS to recombine these responsibilities in the
Department suggests that we are no longer on the same page when
it comes to employee protections. Some of the proposals appear
to be in direct conflict with the fundamental principles of the
Federal Civil Service and could substantially erode the rights
and protections of Federal employees.
Under the proposed regulations, DHS would create an
internal appeals process to review certain aggravated offenses
which require mandatory firing. This internal appeals panel
would be governed by individuals who would be appointed by and
removed by the Secretary. There are currently no provisions for
judicial review of panel decisions.
In 1996, Congress granted the Federal Aviation
Administration similar authority to create an internal appeals
system. Despite the inclusion of certain safeguards, Congress
reinstated appeal rights to the Merit Systems Protection Board
in 2000 amid concerns that the internal process was unfair and
impartial.
The fact that the proposed internal panel at DHS would be
selected by the Secretary and would be required to give
deference to agency mission and operations fails to assure
employees and even me that the panel would be objective and
unbiased. Furthermore, the proposed changes to MSPB processes
and the fact that DHS and OPM could eliminate MSPB appeals
should MSPB decisions fail to give due weight and deference to
the Department's critical mission would undermine the
effectiveness of the independent quasi-judicial agency.
Likewise, I am concerned that the proposed labor relations
system at the Department could strip the bargaining rights of
Federal employees. Granting the Secretary sole discretion to
engage in bargaining to implement agency regulations and select
and remove the members of a proposed internal labor relations
panel would eliminate the very essence of bargaining and turn
labor unions into policy advisors, rather than active parties
and about the bargaining process.
It has been proven time and again that there must be
separation of management and oversight. Otherwise, conflicts
exist. The proposed regulations, while reserving some of the
basic rights of Federal employees, is in effect reinventing a
square wheel. I look forward to our witnesses' testimony and
their thoughts on how to best protect employee rights at the
Department of Homeland Security. And I would like to also
compliment Director James for her work on this regulation as
well.
Thank you very much, Mr. Chairman.
Senator Voinovich. Thank you, Senator Akaka.
It's the standard practice for this committee to swear in
all the witnesses. If the witnesses could please stand, I will
administer the oath.
Please raise your right hands.
[Witnesses sworn.]
Senator Voinovich. Let the record indicate that they have
answered in the affirmative.
I understand that Congresswoman Davis is on her way over.
But in order to move forward with this hearing, I'd like to
begin the testimony this morning with Director James.
STATEMENTS OF KAY COLES JAMES, DIRECTOR, OFFICE OF PERSONNEL
MANAGEMENT; AND JAMES LOY, DEPUTY SECRETARY, DEPARTMENT OF
HOMELAND SECURITY
Ms. James. Thank you and good morning, Mr. Chairman.
First of all, I want to thank the members of the
subcommittees and I'm grateful for the opportunity to be here
today. I'd especially like to thank Chairman Voinovich and
Chairwoman Jo Ann Davis and Senator Durbin and Congressman
Danny Davis for their continued commitment to the best
interests of Federal workers and for their steadfast commitment
to the American Civil Service.
I'd also be remiss if I didn't thank Secretary Ridge and
Deputy Secretary Loy for their leadership and their cooperation
throughout this design process. I think that working together
in a true collaboration, I can report to the subcommittee with
complete confidence that we are and have been united as a team
with a single purpose and that is to create a personnel system
that will honor those in service to our country at the
Department of Homeland Security.
And as you know, the bipartisan legislation that created
the Department gave the DHS Secretary and the Director of the
Office of Personnel Management authority to jointly prescribe
regulations establishing a completely new HR system for most of
the Department's 180,000 employees. Those proposed regulations,
published last week for employee and public comment, represent
a historic step in the evolution of the Federal Civil Service,
rewriting the laws and regulations that govern how the
Department classifies, evaluates, compensates and disciplines
its employees as well as how it deals with its labor unions.
As originally envisioned and as enacted in law, the
regulations remain firmly grounded in and bound by our Civil
Service system's core principles and values. As we focus on
what is changing, I think it's also important to focus on what
has not changed: merit, equal employment opportunity, due
process, veterans preference, and protections against reprisal,
discrimination and other prohibited personnel practices.
As we discuss those proposed regulations today, it's
important, I think, not to lose sight of their genesis. On
September 11, 2001, our Nation came face to face with a
horrific terrorist attack on our homeland. And it was against
that backdrop that the President asked Congress to consider his
proposal to create the Department of Homeland Security. That
merger represented one of the largest of its kind since the
creation of the Department of Defense.
As Director of OPM, I am held accountable for preserving
and protecting our core Civil Service principles and values in
the new DHS HR system. And even as we seek to give the
Department all the flexibility it needs to deal with the most
ruthless and resourceful of enemies, it's important to remember
those core values and those principles.
The Department's new HR system must assure the Department's
ability to achieve its primary mission: safeguarding the
American people from a terrorist attack and other threats,
natural and man-made, to our homeland security. DHS must have
the unfettered flexibility to move people and resources without
delay. It must be able to get the right people into the right
jobs at the right time, give them the technology they need, and
hold them accountable for their performance.
I believe that the new HR system will do so without in any
way compromising the fundamental rights of the Department's
Civil Service. Even before the enactment of the Homeland
Security Act, and well prior to the legislative debate,
Secretary Ridge and I made a commitment to the Department's
employees and major unions that if the legislation passed, the
new HR system would be designed using a collaborative and
inclusive process. I'm here to report today that I believe we
have kept that promise.
Over the course of the last 10 months, we have met and
talked to over 2,500 DHS employees and managers in town hall
meetings and focus groups across the country. We've consulted
with dozens of experts to identify promising and successful
models from the private sector, State and local governments and
other Federal agencies as well. We worked with the presidents
of the Department's major unions and their key staffs,
literally providing OPM office space for the latter so they
could be an integral part of the design process.
And with that input and involvement, our joint design team
developed and presented an impressive array of options to top
DHS, OPM and Federal employee union officials for careful
examination and discussion. Those officials, along with a
number of highly regarded experts in the field of public
administration, provided Secretary Ridge and me with a
thoughtful review of the options that inform the development of
the proposed regulations we published last week.
Again, none of this was required by law. It was just the
right thing to do to identify the best thinking and make
employees inside DHS equipped to succeed. And I should say that
we will hear as we go throughout the hearing today that at the
end of the day, we may not all agree on the outcome. But the
process is not yet over. We are in the comment period, and we
are looking forward to that part of the process as well.
Such openness and inclusion are absolutely essential to any
large organizational transformation. Secretary Ridge and I want
employees and unions to have a voice in the process. And while
we may not be able to alleviate all of their anxieties nor
satisfy their every request, their honest involvement has
contributed significantly to its high quality and will help
shape the future outcome.
Secretary Ridge and I are both committed to continuing this
open and inclusive, transparent collaboration as we begin to
finalize the regulations and then start the implementation
process. In doing so, we will realize the promise and the
historic opportunity of the Homeland Security Act.
I want to thank you again for the opportunity to testify
before you today and look forward to an engaging dialog. Thank
you very much.
[The prepared statement of Ms. James follows:]
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Senator Voinovich. Thank you very much, Director James.
Admiral Loy.
Admiral Loy. Good morning, Mr. Chairman, Chairman Davis
when she arrives, and to the rest of the members of the
committee. Thank you very much for a chance to discuss this
enormously important foundation element for moving this new
department forward in the service of our country.
You all have been enormously strong advocates for the
General Service schedule system over time. And it is enormously
important that we continue to inter-operate, if you will,
together to sort our way through the tail end of this process
that we've undertaken to get this very important piece right.
Secretary Ridge is testifying elsewhere today and asked me
to join Director James for this hearing. I'm honored to do so,
and would offer my written statement for the record if I may,
Mr. Chairman, and mention just a few points as a part of an
oral opening statement.
First, we report to you today on a task that was explicitly
offered by the Congress in the Homeland Security Act. The
challenge so offered recognized the importance of licensing the
Secretary and the Director to design a new HR system that would
meet the needs of our time to get past the times of the past,
including the cold war or even World War II kinds of thoughts.
The General Service system has served this country
enormously well. But like so many things identified with the
cold war, it simply fails to measure up to the needs now clear
to all of us in the very different post-September 11 security
environment. We must build a sense of urgency in to our HR
system, just like we have done with equipment or procedures or
protocols or tools elsewhere in the other aspects of DHS
responsibility. We at DHS have been challenged to think and act
in bold, broad, 21st century ways. And I can offer dozens of
examples of having done exactly that.
We must now do so after a very sound, methodical review
with our HR system. I for one believe it's a fundamental key, a
very real foundation block, for doing what America expects of
this new Department.
What do we want to accomplish? First, we want to be able to
meet mission, to meet mission which, as the chairman mentioned,
causes us to remember September 11 on a daily basis one way or
the other. Our system must be designed to safeguard America and
its citizens from terrorist attack and from threats, natural or
man-made. September 11, September 11, September 11. Remember
that terrible day. It's our generation's Pearl Harbor or our
Alamo. And given that people make the choices and do the things
to preclude recurrence, this HR system is every bit as
important to rethink and rebuild as any intelligence system or
any sophisticated sensor.
Clarity, simplicity, efficiency, agility, adaptability,
these are all elements of something called transformation that
will make the difference for us. Lots of things tie for sort of
a distant second place. But we must be very concerned about
attracting and retaining the very best we can in the Federal
work force. We must reward performance instead of longevity. We
must provide competitive pay in job categories in local as well
as national markets. And we must protect all merit principles,
including whistle blower provisions that the Director has
already itemized.
We must demand timely, efficient decisions from our
processes and from our people. Key flexibility areas for us
have to do with deployment, have to do with technological
inserts, have to do with people assignments, those things our
HR system must support. We believe we have done so in the four
basic areas that we were by law allowed to change. There are
actually six that sort of tend to converge on four.
Remember, our work force is in great majority those people
on line operationally, actually doing this work for America.
This is not like DOD, so to speak, where civilian support,
enormously important, is not what is actually on the line doing
the work. In DHS, it is the civilian Federal work force in the
trenches.
A word on process, Madam Chairwoman. We are very proud of
the inclusiveness and of the thoroughness of our process.
Director James and Secretary Ridge met even during
congressional dialog and deliberations on the law. Meetings
were held with key union officials, experts were consulted and
the work force members were polled for ideas.
A design team was formed of over 80 people, experienced
experts as team leaders, union members, representatives from
work units across the Department, supervisors, managers,
consultants, HR inputs literally from across the land. Sixty or
more town hall meetings were held, and more focus groups than
that, with our own work force members at DHS. Senior DHS
representatives were on the stump listening to concerned work
force members. Enormously high quality inputs were received.
The process produced concepts and ideas then offered to a
senior review committee. I sat on that committee with senior
DHS colleagues, with agency heads, with assistant secretaries,
with the three Union presidents, with academics, with public
administration experts and for 3 days, we listened very
carefully to the presentation from the design team in a very
public forum, robust with discussions and presentations.
The Secretary has since sat down personally, as did Ms.
James, with union presidents to ensure we heard their concerns
and ideas, even beyond the senior review committee. The final
product in the proposed regulations published on Friday
reflects significant listening and idea incorporation.
Madam and Mr. Chairman, this is anniversary week for DHS, 1
year. We have just completed our strategic plan for the
Department, our vision, if you will, of the way ahead. One of
our seven strategic goals is organizational excellence. This
new HR system is our chance, with the Congress' blessing, to
step up and do the right thing. This new system will pay for
performance when lesser performance would jeopardize America.
It will clarify and simplify job classifications. It will
recognize differences in local variations in pay markets. It
will ensure the ability to act quickly and decisively when
appropriate to secure America. It will introduce new technology
now to improve performance. It will resolve disputes quickly
and fairly. It will protect merit principles. It will set
standards for all of Government to emulate, and it will
preserve union bargaining rights over important working
conditions.
I believe this is the right system for the right time. As
the Director mentioned, we began on Friday a 30 day comment
period which offers still more opportunity to work with the
committee, with the members and the staff, to work with the
unions, to work with all who would comment, so that at the end
of that effort, we will have the very best system we can
possibly design.
I believe this is one of the most important changes we
potentially can make in furthering the mission of this
Department. The comment period began Friday, we look forward to
offering every opportunity for continued dialog. This is a
chance for us to discuss proposed regulations that have the
potential to continue the evolution the chairman spoke of in
this system that serves America so well.
Thank you, Mr. Chairman. I look forward to your questions.
[The prepared statement of Admiral Loy follows:]
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Senator Voinovich. Thank you very much, Admiral.
I want to make one comment before I turn the meeting over
to my co-chairman, Representative Davis. I envisioned that we
would be having this hearing after you did your 30 day period.
And this is going to give everybody, including those that are
proposing the regulations and those that have some questions,
to comment publicly during this period. In other words, even
without this hearing, there is a chance for everybody to look
in and see what's going on and what your recommendations are
and what the concerns are of stakeholders.
I was pleased to hear from you, Director James, that it's
not over, that you're still listening. That's very positive.
Again I want to thank the two of you and the team that you have
for taking the time to try and do this the right way.
Senator Lautenberg. Mr. Chairman, I have a question. I
assume the record will be open, because we have a vote now over
in the Senate, and we'll submit our questions in writing. We
thank our colleagues from the House for joining us for today's
very important hearing. We look forward to an outcome that's
going to try to satisfy everybody. Ms. James and Admiral Loy,
you're both used to this kind of thing, so we know that it's
going to come out right. Thank you very much.
Mrs. Davis of Virginia [assuming Chair]. Thanks for your
patience with our musical chairs here. Today's sort of been
Murphy's law, if it could happen, it will, and it has. I
apologize, I had to go over to the floor to manage the GAO bill
that is a very important piece of legislation we passed out of
this committee. So I do apologize.
I'm not going to take the time to do an opening statement,
other than to publicly say how much I appreciate Senator
Voinovich and his leadership on this issue as well. It's just a
real pleasure to work with him. I thank him and his colleagues
for coming over today.
I would like to recognize our ranking member, Mr. Davis, if
you have an opening statement.
Mr. Davis of Illinois. Thank you very much, Madam
Chairwoman. Because of the logistics of what I've got to do, I
am going to read an opening statement and ask that the
witnesses just give me the opportunity to do that.
Chairman Davis, House and Senate colleagues, witnesses and
observers, we have embarked on a sad and troubling era in the
history of Civil Service. The enactment of major legislation
transforming the personnel systems of the Government's two
largest agencies, DOD and DHS, has broken the back of a Civil
Service that is grounded in the fair and equitable treatment of
employees.
Proponents of these changes argue that the current system
is cumbersome and inflexible. But are agencies that are being
granted exemptions from Title V fixing what is cumbersome and
inefficient with the system, or simply what is inconvenient?
Regrettably, the fixes imposed are radical, undermining the
rights of workers, while empowering management in a
disproportionate, unbalanced manner.
This ad hoc and non-transparent approach to reform will not
serve us well. I suspect it will make it more difficult to
maintain stability within our work force. I am concerned that
productivity and customer service may suffer as a result.
The title of this hearing has it almost right, the Congress
and this administration have thrown out the key protections
that employees relied upon to ensure fair treatment and a
stable work environment, their appeal and collective bargaining
rights. This was done, the proponents say, for the sake of
homeland and national security. I greatly doubt, however, that
the record will reflect that this sacrifice has made America
any more of a homeland or any more secure.
I thank the witnesses for coming and look forward to
hearing the rest of their testimony, and thank you, Madam
Chairwoman, for holding this hearing.
[The prepared statement of Hon. Danny K. Davis follows:]
[GRAPHIC] [TIFF OMITTED] T5409.014
Mrs. Davis of Virginia. Thank you, Mr. Davis.
Again, I'd like to say thank you for your patience to all
of our witnesses who are here today.
I'd like to start out with an opening question to, I guess
this would be to Admiral Loy. What do you believe to be the
most significant improvements to managing your employees that
would result from implementing your proposed new personnel
system?
Admiral Loy. Madam Chairwoman, I think the sort of general
notion of why we think this undertaking is so important
probably goes back really to the dialog that was part and
parcel of the Congress' deliberations that resulted in the
Homeland Security Act. This world we are living in post-
September 11 is just a dramatically different security
environment than we have ever lived in before. For several
hundred years, we took great comfort in these wonderful moats
called oceans on either side of us that precluded, we felt,
literally up to September 10, 2001, an opportunity for this
impenetrable superpower to be challenged in ways that all of a
sudden manifested themselves on September 11.
And in the midst of that mission that has been offered to
this Department to take on for the Nation, that is to secure
homeland and its citizens against those kinds of attacks, we
need the attributes of agility and quickness and adaptability
that are not necessary part of a system that requires so much
conversation in advance of action.
We want very much to hold onto what was at the heart of the
1978 legislation. As you go through our recommended package,
you will find attention and devotion to those principles from
the beginning to the end. So the notions of merit and whether
it's about the end, the boards that currently define our lives,
even things like the EEOC and others, we are fundamentally
supportive that those notions continue as support elements for
our work force.
But we also want in this very new security environment to
attract and retain high performers. We want to reflect on
what's different about a locale in Portland or Chicago or Los
Angeles that could make us competitive with local folks in the
hiring process, to make sure we get the best employees there.
We want to reward and incentivize performance rather than
longevity in the process of due course of business. We want to
induce timeliness and efficiency in everything we do. And most
of this often occurs in the pre-event world that we live in
today.
So as we are in the prevention and protection business of
our security conscious Nation, those attributes in an HR system
are fundamental to the foundation of being able to do those
things well.
Mrs. Davis of Virginia. Your regulations, your plans that
we've seen, they have a lot of changes for Federal employees.
And I know they're very nervous. How can you assure our
employees that they are going to be treated fairly when it
comes to the pay system?
Admiral Loy. I think there absolutely must be a marketing
dimension, a training dimension and education dimension to our
effort over time. It's a matter of not being ready to turn the
switch on, so to speak, until that education and marketing
effort has been accomplished.
We, if you look carefully in the President's budget request
for 2005, a lot of dollars are being asked for that allow us to
make an investment in the training required, so that
supervisors are very good at the performance and appraisal
systems that we are considering putting into motion through
this new system. We want very much to hold on to those aspects
of the Civil Service system at the moment that has sort of
served us so very well in protecting the interests of the
Federal work force.
Senator Lautenberg's comments were right on track, the
heroism of Federal employees on September 11 or on any other
day is not in question here. I have found myself either in
uniform or in public service for almost 45 years. I have yet to
find a Federal worker who comes to work in the morning with the
intention of not doing a good job. They come with the intention
of doing all that they can to do what we need to do.
So there's never a question in any of the design work about
whether we mistrust or whether there is some challenge
associated with why we're doing what we're doing. We're doing
this because the new security environment, which is largely
resident in the Homeland Security Department, requires aspects
of work from employees that we cannot hope are there any more,
we must mandate that they be there.
Mrs. Davis of Virginia. My time is up, but I want to
followup with one quick question on the pay, because I think
that's one of the things that is probably worrying the
employees more than anything. Verbal communications can be used
as a basis for performance. Can you give me an instance of when
a supervisor or manager would use a verbal communication for a
performance expectation as opposed to a written communication,
and then that verbal communication be used toward their
performance? I think I have that right.
Admiral Loy. I think it is right on to one of the sensitive
foundation blocks of how we deal with performance appraisal on
one hand, then hold accountability in terms of performance to
that. I think there are probably countless examples of where a
supervisor in the thrust of crisis or the notion of preventing
a crisis from coming on would deliver verbal direction to an
employee to do things that perhaps are outside the mainstream
of the 24 by 7 kind of work that employee does.
Holding that person accountable thereafter to the kinds of
things that truly make a difference to whether or not this
Nation handles the upcoming crisis well or poorly is along the
line of what you're talking about, Madam Chairwoman. And the
ability that we have to have that agility within the system,
such that whatever the written performance process is can be
adapted, can be made agile by verbal instructions to get work
done that absolutely must make a difference in our ability to
secure America are the kind of things we need to go to.
Mrs. Davis of Virginia. My time has expired. I'm going to
go on to one of my colleagues, but we may have a chance for a
few more questions.
Admiral Loy. If I may, just a couple globals. No jobs lost,
no pay loss as we enter this new system, and an opportunity
over time to effect a sort of pay process that recognizes
across the board increases on an annual basis, very much a part
of what we listened carefully and heard from union
representatives during our debates. Discussions associated with
local differences between categories of work in one corner of
the country or another, the opportunity to reflect that on a
fair and equitable basis to Federal employees with their local
competitors for those same kinds of jobs.
And then last, the idea that superior performance can be
incentivized by yet additional dollars coming your way as both
a reward and incentive for continued high performance. That
notion, as a pay for performance which still holds onto the
basic principles of satisfactory performance yielding pay
raises on an annual basis is a systemic notion that we have to
educate and sell to our employees.
Mrs. Davis of Virginia. Thank you, Admiral Loy. I might say
on the process, I was delighted to hear that you included so
many people for the input on that process.
I'd like to yield now to Ms. Holmes Norton for questions.
Ms. Norton. Thank you, Madam Chairwoman.
This is an important hearing. I can only hope that the good
oversight, Madam Chairwoman, that you're offering, has some
effect on OPM. I regret that we seem to be on a kind of 2 day
week, which is a 1-day week, I have another hearing at 11
o'clock, I'm the ranking member and may have to run back and
forth.
Let me say that what I look for when there's a change is
evidence of best practices. Because frankly, I sympathize with
what you're having to do in designing a new department, making
sure that personnel, along with everything else, comports with
what we need in the new era of global terrorism.
But I have to tell you, I was a member of three corporate
boards before I became a Member of Congress. I was also a
member of a UAW appeal board. I got to see on both sides how
corporations, these were magnificent corporations, some were
organized and some were not, and I got to see how unions go
with things, up close. I also taught labor law.
So when I look, I come at it with eyes that go in several
different directions. The first thing it seems to me you do
when you're faced with your kind of problem, which is to take a
whole personnel system, turn it on its head and think, what
effect will this have on the people who are going to work here,
particularly if they're dealing with homeland security. Because
you can mess with the morale and the way people do their jobs
in a number of agencies. You mess with this, you're messing
with us.
So I'm really looking for evidence of best practices. My
question is, where did all of this come from? Because I don't
see in this much that indicates what I understand to be best
practices. You will see that employees think, well, what's
happening there are excuses to do the kinds of changes that
management has always wanted to do. I have problems with
consultation. I have problems with changes that seem to me to
be truly gratuitous.
Let me give you an example. I can understand the reduction
of bargaining on some matters, we're talking about the Homeland
Security Department. But here you've come forward with
permissive subjects, now, permissive subjects, are no longer
subject to bargaining, even at the agency's discretion. Well,
then agency might decide, I may be able to implement this
matter more easily if I sit down and negotiate with my
employees. And management is going to say, I don't even want
that discretion. And you're telling me that a Fortune 500
company would in fact do that.
Another example of gratuitous changes, why in the world
would you want to eliminate the post-implementation bargaining?
I mean, you've already done it. Bargaining doesn't mean that
you have to do what the other side says. Why in the world
eliminate that? And have you thought about the effect you're
having on your employees? I want answers to both of those
questions. Why you have eliminated those, and what factor has
gone into the fact that you are fooling with folks who have
undergone the most humongous change in their work life, and
what effect is this going to have, not on how they feel, but on
whether they do the job they do have to do in a sensitive
agency charged with protecting the residents of the District of
Columbia and the United States of America?
Admiral Loy. Let me take a stab at it first, Ms. Norton.
Absolutely we are sensitive to the impact this would have on
our work force. That is largely why the design process was so
inclusive, to hear from thousands of them in the due course of
the design work undertaken. Beyond that, we had at the table at
our design team and at the senior review committee consultants
from, I don't know if it was those specific Fortune 500
companies that you were part of, but we reached into corporate
America, we reached into all those corners you describe,
whether it was academic, consultative expertise, to get the
best practices, as you describe them.
Ms. Norton. So the bargaining at an agency's discretion,
when management says, I want to be able to bargain, you're
telling me that Fortune 500 companies have said, that's a best
practice, that's how to get the most out of your employees?
Admiral Loy. What you asked me for, ma'am, was a
description----
Ms. Norton. I gave you an example. I really gave you an
example so you wouldn't be talking in abstractions. I gave you
a concrete examples of what, that I regard, because I don't
think everything you've done here is wrong. I gave you a
concrete example of something that I believe no Fortune 500
company that looks at its bottom line would do. And I want to
know where that came from.
Admiral Loy. It came from the dialog of the debate that we
took on over the course of this 9 months. The discretion at DHS
about bargaining is arrived at the Department. So our challenge
in that regard was to build a system that recognized that
discretion. And it has to do--every moment of this goes back to
the----
Ms. Norton. This is at the discretion, Admiral Loy, this at
the agency's discretion. I want you to tell me why, if the
agency in its discretion wants to bargain about certain issues
because it believes that is the best way to get the maximum
from its employees, how that hurts management.
Admiral Loy. We just feel that the discretion of that
bargaining should be at the Secretary's level at DHS, ma'am,
given the mission that we have to conduct for the country.
Ms. Norton. So this agency is going to be run from the top
up by somebody who has nothing to do with folks at the
management level, and even if the agency wants to decide that
on certain issues the best way to get this done. That's what
I'm talking about, to get this done is in fact to operate in a
consultative way with employees. You say the top of the agency
should make that decision.
Admiral Loy. We believe so.
Ms. James. I would just add as another factor, at the
discretion of the Secretary, because of the unique mission of
the Department of Homeland Security, with the information that
may exist at the Secretarial level that may not exist at the
agency level, that it certainly would be important to have the
input of the Secretary to make those determinations.
Ms. Norton. I have no problem with input. What I'm asking
is, suppose there's input and the agency and the Secretary have
a discussion, and the Secretary gets, it looks as though this
is a Secretary's decision period, like it's not up for
discussion because there is no discretion.
Ms. James. I'm sure that there would be that kind of give
and take. But at the end of the day, that kind of discretion
needs to rest with the Secretary, because of the unique mission
of that Department.
Ms. Norton. But there is no discretion. So I take it that
the Secretary doesn't even have the discretion.
Admiral Loy. But he does, ma'am. The Secretary has that
discretion to make the choice as to whether or not he wants to
do that at the agency level.
Ms. Norton. So you're telling me that the Secretary then--
--
Admiral Loy. Can make that judgment.
Ms. Norton [continuing]. Can decide that there will be
bargaining on permissive subjects and that is your intent here?
Admiral Loy. Yes, ma'am.
Ms. Norton. Thank you very much, Madam Chairwoman.
Mrs. Davis of Virginia. Thank you, Ms. Norton.
I'd now like to yield to our distinguished co-chair,
Senator Voinovich.
Senator Voinovich. I apologize for having to skip out. In
examining the proposal, it's clear there are still many details
to be worked out. If any of these questions are redundant, just
say we've answered it already and I'll look at the record.
When do you plan to have all the details of this new
personnel system worked out? Will there be additional
regulations issued? Will additional rules be issued as
directives as opposed to regulations? Is this being done
intentionally so as not to cast anything in stone, so to speak?
Ms. James. Let me just speak a minute to the process. We
are now in the comment period, and I believe this is one of the
most important periods in the entire process. For those who
watch these things carefully, we have gotten to the point where
we have issued the regulations, they are out there in a very
transparent way.
When Secretary Ridge met with the union presidents, he
encouraged them to keep the dialog open, and at the end of that
period, we will sit down, this has been a collaborative process
from the very beginning. We are in a period where we still have
the opportunity to refine, if necessary, to receive input from
Members of Congress as well as from our union presidents, as
well as from employees within the Department. And we are
listening to and incorporating their ideas and comments as
well.
I would add to what Admiral Loy said in terms of the
admonition that we look at best practices. I can assure you
that we did, that we had some of the best subject matter and
technical experts in the country, as well as from the Academy,
as well as from good government organizations. And this is the
culmination of that process.
Senator Voinovich. The point I'm making is, after this is
over with, are there going to be any additional rules issued as
directive as opposed to regulations? In other words, are the
regs going to be comprehensive so that we can pretty well say
that's it, and not have some new directives coming out later
on?
Ms. James. I think the regulations will be very
comprehensive. But for those who have been at this a long time,
they know that the implementation and how this gets interpreted
is as important as well. For that reason, the Secretary and his
staff, have come up with a very comprehensive implementation
strategy, which is inclusive as well. So those individuals who
have been at the table for the development of the regs will be
at the table for the implementation as well.
Senator Voinovich. That's what I'm getting at.
I'm also concerned about parity between the classification
and compensation systems of law enforcement personnel. As you
know, GAO noted in a study published last year that TSA, which
was given great personnel flexibility, drew away hundreds of
uniformed officers from Capitol Hill Police, the Uniformed
Secret Service and the Park Police. While this was beneficial
to TSA, it was detrimental to these other police forces that
are facing the same challenges of greatly increased security in
the face of possible terrorist attacks against national
leaders, facilities and monuments.
What did your design team do to avoid similar unintended
consequences with this personnel system? As you know, I've
asked OPM to conduct a study of Federal law enforcement pay and
classification. That study is due on April 30th of this year.
What I'm getting at is, what have you done to recognize that's
a problem, so that once this is over we just don't have various
agencies cherry picking other agencies because of the better
pay that's being provided?
Ms. James. I think that's one of the reasons why it's
important Congress did what it did by including OPM in the
process. Because we do have that Government-wide eye and have
the opportunity to say, if something happens over here, what is
the implication and the impact over here. We want to make sure
that the Department of Homeland Security has the best personnel
systems that will meet their mission.
But we also have an obligation and an ability to look
Government-wide. So we always had one eye to that.
What I would say is that in the process of designing their
pay systems and their classification systems, and they sort of
go hand in hand, that the simplified structure and the
increased flexibility that they have will give them the freedom
to make sure that those very issues that you addressed are
looked at, and with an eye toward what the implications are
going to be across Government. We've got to bring some, and if
the Senator gets to the larger question of the flexibilites
that we grant at the individual level for the departments and
the unintended consequences that they have Government-wide.
And I think as we designed these systems within the
Department of Homeland Security, our desire was to make sure
that even within the Department there was not the opportunity
to cherry pick between the various agencies. And Admiral Loy
may want to talk about how they're going to address that
internally.
Admiral Loy. Just a moment, sir. First of all, I have to
confess to being the cherry picker at TSA when much of that was
going on with the immediate crisis of staffing that agency and
getting the job done that the Congress demanded and the very
aggressive deadlines that were offered in that earlier
legislation, the Aviation Transportation Security Act.
I think there is work to be done here, sir, and I think
there is also congressional opportunity for participation. As
you know, we can touch pay but not benefits. So we're in the
algorithm of total compensation, the adjustments that might be
going on locally or might be going on elsewhere in the Federal
service, have a different benefit package than--we can't go
there. So the inconsistences may be more than in just pay
itself. That will take the consciousness of the Committee to be
helpful, perhaps, with respect to sorting those kinds of things
out when appropriate.
One initiative, for example, sir, that we've undertaken in
the Department is the new CBP officer, this new organization
agency that has been created by a combination of what
heretofore has been INS functionality and Customs
functionality, and even the Agriculture piece that has come
over into the Department. The new Customs and Border Patrol
officer will have one uniform, one package, one set of pay
benefits and that will have already begun the process of
eliminating that internal cherry picking, if that is the term
of art we're using today, within the Department, and as an
example for where we can do things better, if you will, across
the board.
I also think Kay's comment about OPM's role in our
collective design work, she brings to the table concerns across
Government in other agencies that make sure that we are not
designing something that ends up being problematic elsewhere.
Senator Voinovich. I'd appreciate a memo from you on how
Congress can get into that. If you're looking at a benefits
package, you've got to compare the whole thing.
Admiral Loy. Yes, sir. Uniformed services, Secret Service
pay package is established in law. There are other elements of
other agencies' forces that are established in law. So we are
bound by those as we deal with making an effort toward
consolidating our notions across the board for the Department.
Senator Voinovich. Is my time up?
Mrs. Davis of Virginia. You can take as much time as you'd
like, Senator.
Senator Voinovich. Admiral Loy, in your opening statement,
you made reference to the regulations removing the requirement
for collective bargaining over the impact and implementation of
core management rights, including deployment of personnel,
assignment of work and use of new technology. Can you provide
specific examples of actual situations in the past where
collective bargaining over these types of activities prevented
management from meeting mission needs?
Admiral Loy. I think there are, I use the phrase
prevention, on the prevention side of a God forbid event, in
order to make certain that we have transformed the force and
the authorities associated with using the Federal force to get
people in places that we need them immediately without, and
when I say immediately, it's sort of whatever the intelligence
stream is telling us at the moment. It's about the idea of
taking a product that has just been perfected by our science
and technology work in the Department and instantly getting it
into the force so it's a usable sensor wherever it might be
necessary.
So the notions of deployment, the notions of assignment,
the notions of technology to be used as efficiently and as
quickly as possible broaches the requirements that we have
offered in the bill.
There's a number of things in the past where the idea of
new national procedures, for example, if the agency determines
that we can use U.S. Visit, the new program, in a manner
different than we have heretofore used it, because we've
uncovered a new protocol, or uncovered a better way to do it,
and there are people implications to it, we need to be able to
take advantage of those kinds of things immediately. The idea
associated with technology, if the VACA system in our ports all
of a sudden has dimension to it that allows us to be more
sensitive to bio and chemical threats to the Nation and it is a
requirement that our people be so trained to use it
immediately, we don't want to wait over time until those kinds
of things can be put into place.
Senator Voinovich. Are you saying that the examples that
you gave me are all subject to collective bargaining and would
slow the process down?
Admiral Loy. At the moment, many of them could be, yes,
sir. And we believe in the interest of mission, which is always
where our least common denominator goes back to, we want to
make absolutely certain that mission is served first in this
new Department.
Senator Voinovich. I'll just ask one more. I'm sure this is
on a lot of people's minds. The power of the Secretary to
remove members of various boards described in the regulations
may cause employees to question their independence. How do you
plan to ensure the independence of members on the labor
relations board and the mandatory removal panel?
Admiral Loy. I'll let Kay join me in the answer. The bottom
line is, we imagine terms to those boards, so that it's not a
situation where the Secretary can appoint today, unappoint
tomorrow, rather that the terms associated with the
appointments to those boards would be such that the opportunity
for mischief, as someone had termed it earlier, is simply
minimized or eliminated, we would like to think.
The real notion here is those boards must be sensitive to
the mission of this Department as it is being driven by the
Secretary. That requires a sensitivity to the work to be done
and therefore requires a sensitivity to how the kinds of appeal
process things might come forward to it.
There is a notion in the regs that has prompted a number of
comments with respect to those mandatory removal offenses, and
what that inventory might be and how does the Secretary appoint
at the moment a board to review an appeal from an adverse
action associated with that process. In that instance, I would
offer first of all, we imagine a very, very small number of
those kinds of things. They are enormously egregious notions.
For example, on the line as a CBP employee at the portals
of our country taking a bribe to allow someone to go through
the system without being tested, without being dealt with as
appropriately as the protocols call for. The notion of
intentional abrogation of classified material to sources that
we simply don't want to have them, it's that kind of egregious
offense that would cause the Secretary to have concerns and
nationalized mandatory removal as a penalty for such
activities.
That list, I think, will be enormously short. It is still
to be developed. And I reinforce the notion that Director James
has from the very beginning here today: this remains a work in
progress for us and the comment period that has just begun on
Friday is our last best chance to get the best ideas on the
table that we can. But those kinds of notions, sir, I think go
directly to your question.
Senator Voinovich. It's really important that these boards
are looked upon as being independent.
Admiral Loy. Independent and objective, yes, sir.
Ms. James. Madam Chairwoman, can I just state the obvious
in answer to that question? That is, for those boards to be
effective at all, they must be credible. And they must be
credible to the employees. So the Secretary, of course, in
making his selections for who would serve on those boards,
would have to identify individuals that pass the straight face
test in terms of credibility.
I believe that with the integrity of the Secretary and the
people that he could draw from, you can put together boards
like that. I'm confident that he will, that employees will feel
comfortable going before them.
Senator Voinovich. I've been involved with lots of boards,
at the State level and the local level. If we put some
provisions in there that they have to be composed of so many
Republicans, so many Democrats, we balance it and try to get
good people. The fact that we go through that process adds
credibility to those boards and commissions. If you're going to
replace a familiar system with a new one, it's really important
that it be considered legitimate, and as you say, pass the
straight face test.
Admiral Loy. Yes, sir, I could not agree more. In fact,
it's one of the things that we received an enormous amount of
commentary from our own work force on, was not so much the
makeup and getting the right answer at the other end, which of
course goes without saying, but the timelines associated with
getting those questions resolved quickly is very, very
important to the work force at large. They want those answers
back quickly so they can get on with their lives.
Senator Voinovich. Thank you.
Mrs. Davis of Virginia. Thank you, Senator. I just want to,
on this point, clarify something. The credibility of who the
Secretary appoints wouldn't concern me so much as, and I just
want to make sure that I heard your answer correctly, Admiral,
to clarify. In there I think it says that the Secretary can,
they're appointed for fixed terms, they can be removed for
inefficiency and some other nebulous sorts of words. But if I
heard you correctly, there is going to be something prepared
that will specify what is inefficient, exactly for what reason
the Secretary could remove the person from the Board.
But what I'm getting at is, what would keep the Secretary
from saying someone is inefficient just to remove someone that
he doesn't care for and he doesn't like the way they've been
handling the problem?
Admiral Loy. I think that's a very, very good point and we
must be very specific in the terms associated with both
appointment and potential causes for removal.
Mrs. Davis of Virginia. So you'll be doing that, because
it's a work in progress?
Admiral Loy. Yes, ma'am.
Mrs. Davis of Virginia. Thank you.
I would now like to recognize the gentleman from Maryland,
Mr. Van Hollen.
Mr. Van Hollen. Thank you very much, Madam Chairwoman.
I would like to get an update on where you are, I just
wanted to focus on the questions of rights in these
regulations. As I understand it now, there are certain types of
so-called infractions that would result in an in-house panel as
opposed to the Merit Systems Protection Board, is that right?
Admiral Loy. That's right, sir. And a singular source that
would be dealing both with performance and conduct kinds of
things, rather than multiple sources, as indicates today.
Mr. Van Hollen. How would the members of that internal
review board be chosen? The question is, if we're going to
substitute this internal review board for what is clearly an
independent board, we want to make sure that it is perceived to
be fairly selected by the employees who could conceivably be
coming before the Board. What is the plan for that?
Admiral Loy. The plan is largely as we have just been
discussing, sir, which would offer the Secretary the
opportunity to make credible appointments to that internal
board that face the music, so to speak, of objectivity and
credibility in the fashion we were just describing.
Mr. Van Hollen. Will you be consulting with the
representatives of employees in making that selection?
Admiral Loy. Absolutely, those conversations would in fact
take place.
Mr. Van Hollen. As I understand it, with respect to appeals
that do go to the Merit Systems Protection Board, the new
regulations eliminate the MSPB's current authority to modify
agency imposed penalties. Why would we do that in these
situations?
Admiral Loy. Well, it's conditioned on the notion that
charges are sustained by the board and on the occasion of the
sustainment by the MSPB on the chargee that would come to it,
the system as designed would not permit the MSPB to make
adjustments. They can make recommendations to adjusting, but
the Secretary would have the final say on the results of that
deliberative process.
Mr. Van Hollen. Is that different than appeals that take
place in other agencies throughout the Government?
Admiral Loy. At the moment, the MSPB can in fact make
adjustments downward, for example, in the penalty process, if
you will, that would be forthcoming.
Mr. Van Hollen. I mean, the idea of having an appeal,
obviously, to the MSPB to have this independent authority, if
they conclude that the penalties applied by the Department are
unfair, at this independent body, why wouldn't we want to allow
them to adjust the penalties for what they consider to be a
just outcome? I mean, this is an independent body. Why wouldn't
we want to allow them to do that?
Admiral Loy. Yes, sir, I understand your question. And the
notion as constructed in the efforts so far that is in the regs
would offer the MSPB every opportunity to make recommendations
to modifications.
Mr. Van Hollen. I understand that. Why would we want to
take away from the MSPB in this instance the rights they have
to address grievances for employees in any other department of
the Government? Why is that necessary?
Admiral Loy. We just feel that in order to be sensitive to
the unique mission of this Department, the Secretary's
prerogative is the more appropriate choice.
Mr. Van Hollen. And I understand you're also changing the
burden of proof with respect to claims made to MSPB. Is that
correct? In other words, the preponderance of evidence
standard, which is applied throughout the Federal Government,
which applies in courts of law throughout this country in civil
cases, you want to change that, you want to reduce the burden
of proof with respect to the appeals made from the Department
of Homeland Security?
Admiral Loy. Yes, sir. At the moment in our work, on the
performance side of the house, the burden of proof is at a
substantial level. And for conduct offenses or appeals it's
associated with preponderance of evidence, as you describe. The
standard of proof that is being offered in the construct in the
regs is that substantial is adequate for both performance and
conduct paths.
Mr. Van Hollen. Well, let me ask you this. If someone's
accused of a certain infraction, the preponderance of the
evidence standard means when the fact finders look at the
evidence, they conclude that it's more likely than not that the
infraction occurred, right?
Admiral Loy. Stronger than substantial, yes, sir.
Mr. Van Hollen. More likely than not?
Admiral Loy. More likely than not.
Mr. Van Hollen. The preponderance of the evidence, the
scales adjust to say, looking at the evidence as a fact finder,
why would we want to say, even where we don't find that it's
more likely that this infraction occurred, that we can still
punish the individual, even though the evidence doesn't show
that it's more likely that an infraction occurred than it
didn't, why would we want to do that?
Admiral Loy. We just feel that in the interests of
supporting the mission of this Department, in supporting the
general notions of simpler, faster, fairer processes----
Mr. Van Hollen. Well, how is that fairer? How is that
fairer, to be able to punish an individual, even though the
evidence, the preponderance of the evidence, the weight of the
evidence doesn't show they committed a violation? How is that
fairer?
Admiral Loy. These are simply, sir, just to legal,
technical mechanics. We believe the substantial standard is
adequate to the test.
Mr. Van Hollen. Well, I wouldn't call these technical.
They're substantive changes. And that's obviously why they were
made. And it's a departure from the standard that we apply
throughout the rest of the Federal Government. I would hope
that in the process, as we continue to review these
regulations, you take a serious look at what clearly, I don't
think can be defended. I don't think you can defend changing
the rules of evidence, essentially, on the basis of national
security in this case. It's just a matter of fairness.
Thank you, Madam Chairwoman.
Admiral Loy. We look forward to that discussion, sir.
Mrs. Davis of Virginia. Thank you, Mr. Van Hollen. Now I'd
like to recognize Mr. Mica.
Mr. Mica. Thank you. I'd have to disagree with my colleague
on that last issue. I think in the instance of protecting the
homeland that these positions are different. Substantial should
be adequate.
In that regard, let me just ask a couple of questions. You
have, regulations are silent on judicial review of decisions of
Homeland Security Labor Relations Board or the panel that will
decide on mandatory removal offenses. When would you have such
a list compiled and what would you anticipate would be
considered mandatory removal offenses, and would be criminal
acts and things of that nature?
Admiral Loy. Yes, sir. Mr. Mica, as you know, having worked
together with us over the last couple of years on the aviation
side of the House a lot, the whole idea of this work that we're
involved in offers forward some notions of mandatory removal
from this work. If we find ourselves doing things such as
uncovering folks who have with fraud or bribe accepted personal
gain and turned their backs, so to speak, on their
responsibilities as securers of the homeland. The whole notion
of the kinds of material that we work with day after day, if an
employee would breach classification boundaries and turn
material over or look the other way when those kinds of things
are possible. Those are the kinds of egregious things that will
find their way onto what I think will be a very short list of
these----
Mr. Mica. It would be your intent, though, to not have
appeal, those offenses eligible for appeal?
Admiral Loy. There would be an appeal to a board of the
moment established by the Secretary to hear it.
Mr. Mica. But not to the Merit Systems Protection Board?
Admiral Loy. Judicial review, sir?
Mr. Mica. Or to the merits.
Admiral Loy. I think we have work to be done on the
judicial review of, but it would not be to the MSPB. It would
be to in the cites that you're giving me.
Mr. Mica. When we created Homeland Security, one of the
things we wanted was a performance based organization and the
ability to fire non-performers.
Admiral Loy. Yes, sir.
Mr. Mica. You've made some improvement, I see, in adverse
personnel action, speeding up the process. Having chaired Civil
Service for 4 years, one of the problems I found is you
couldn't get--well, first you couldn't get performance based
standards, and second, you couldn't get rid of poor performers.
You have some of that process here, and you've shortened that
and I commend you for that.
But my concern is that we allow people in one of our most
critical areas, that's homeland defense operations, to game the
system, to not be able to fire them, one for bad performance,
I've looked at your pass-fail, which you don't do, you have a
different system in place. But we should have the ability to
clearly fire poor performers without a lengthy appeal and
gaming the system.
The second, and I see you speed up that process, but they
still game it. I see gaming possibilities in the appeal
process. You can appeal an adverse personnel action, you can
also appeal pay banding. Do people get two bites, can they get
two bites at the apple?
Admiral Loy. No, sir. Under the designed reg, there would
be only one bite at the apple.
Mr. Mica. And then finally, this stuff gets to the Merit
Systems Protection Board. What's your current backlog time of
processing actions before the board, Ms. James?
Ms. James. I don't have authority over the MSPB.
Mr. Mica. I know, but do you have any idea?
Ms. James. I'm not entirely sure. I know that they do have
a backlog, and I know that they have been very helpful in
working with us in this design process to streamline the
process and to be sensitive to the mission.
Mr. Mica. I'd like for the record the time of the current
backlog before these various boards and then the process. It
was years, I mean, nobody ever got fired, everyone gamed the
system. The other game that's played is either poor performers
or people who would have some action taken against them,
adverse personnel action, then turn around and they're put in
sort of a limbo or moved to another position while they're
gaming the system. Is there any prohibition in what you're
proposing on gaming the system for poor performers?
Ms. James. Let me just say a couple of things about what
the Department did that I think are creative and innovative.
They did in fact look at ways of streamlining the system. The
Department of Homeland Security had the opportunity to
completely take out the MSPB, they did not. But what they did
is sat down and worked with them and said, how can you work
with us to streamline the process so that you can be sensitive
to our mission and make sure that there is an appeal process in
place.
Mr. Mica. And you streamlined that on the short end. I'm
concerned about the long end judicial merit protection and EEOC
cases that went on and on.
Ms. James. I think we want to make sure that, being
sensitive to the mission of the Department and balancing that
against the opportunity to protect employees' due processes,
that they have done a good job of maintaining both and in
working with them. So while people may not be entirely
satisfied that we have these independent boards appointed by
the Secretary, they are there. They will be transparent. They
will be available as a process for employees.
While there have been opportunities for many bites at the
apple, we have taken that and streamlined that so that it will
no longer be an issue. And this is a work in progress. There
will be opportunities to tweak it even further.
Mr. Mica. Just a couple of quick questions. There are
180,000 employees plus or minus, and many are excluded TSA,
military----
Ms. James. About 70,000.
Mr. Mica. So 70,000 is what we end up with.
Admiral Loy. About 110,000 that will be impacted, sir.
Mr. Mica. OK, that's my question. How many are impacted
total?
Admiral Loy. I was trying to add that up last night. I
think it's about 110,000.
Mr. Mica. Admiral Loy, did you say that when we
consolidated these positions, there was not one position
eliminated out of the 80,000 or whatever we consolidated?
Admiral Loy. With our Customs officers, sir?
Mr. Mica. With any of them. Did we eliminate any position?
Admiral Loy. I don't know that we have eliminated positions
in the course of this design work. I'm not sure I'm following
your question.
Mr. Mica. That was just a general question. In this whole
consolidation, we considered the reform and homeland security
and there was testimony from that table before this committee
that there would be some consolidation, possibly. If you know
of any, I'd love that for the record.
Then just finally, the cost to implement. I saw $130
million. Is that the cost to implement this new system one
time, over a period of time, or does that include operational,
with a new HR system? What are the estimates for implementation
and then cost to run, and can you compare that with any of the
current HR systems we have or we're eliminating? Maybe you
can't answer here, but could you supply and make that part of
the record.
Admiral Loy. I'll happily do that, sir. I can give you at
least a snapshot up front. There will be, without doubt, a
significant up front investment in order for us to do the
training, mostly, appropriate to make sure our supervisors and
managers are adequate to the task of the performance appraisals
that are the cornerstone of doing what we need to do with pay
and personnel decisions down the road.
Mr. Mica. But the long term is?
Admiral Loy. Longer term, I will get that back to you, sir.
I don't know the comparative piece between an HR system now and
then.
In the 2005 budget, we have asked for about $100 million to
get on with this initial investment point. Then we've also
asked for I think $12.5 million for the pay pool for fiscal
year 2005. Because this will be a phased-in over time effort to
reach those 110,000 at the other end of several budget cycles.
Mr. Mica. Thank you, Madam Chairwoman.
Mrs. Davis of Virginia. Thank you, Mr. Mica. And just for
clarification, before the gentlewoman from Tennessee who has
been so patient, you didn't lose any jobs, but you didn't
increase the size of the Federal Government and add jobs, did
you?
Admiral Loy. No, ma'am.
Mrs. Davis of Virginia. Now I'd like to recognize the
gentlewoman from Tennessee, Ms. Blackburn, and thank you for
your patience.
Ms. Blackburn. Thank you, Madam Chairwoman, and thank you
to you all for taking the time to come. We are interested in
this and in the agency reorganization and homeland security and
appreciate your mission and the mission that you all accept in
securing our country.
I want to followup, let's go back and talk about this
implementing the pay for performance. Because I appreciate the
flexibility that you all need and that you desire. I support
that.
I do want to look at this implementation on the pay for
performance. One thing I have not heard, and I did not find in
your testimony is what your timeframe is for your
implementation, when you feel like you will move everybody into
this new system.
And then also, one thing that I've not seen, and Admiral
Loy, you may have just started to touch on that, your financial
systems, the DHS financial systems, to track the pay for
performance. Do you have your, the architecture in place for
that? Who is handling that, and what kind of transition do you
expect? If each of you would address that, that would be great.
Admiral Loy. Yes, ma'am. As far as initial implementation,
our goal is in 2005 to have covered all of the headquarters
work force, the one major directorate, if not two major
directorates at headquarters to include the information
awareness and infrastructure protection directorate and the
science and technology directorate. We are choosing those so
that we can sample across the board of occupation categories so
we can make sure we're dealing with effectiveness at a variety
of occupational categories.
Then we have chosen the Coast Guard civilian work force to
be the agency's first effort out of the box, so to speak.
That's about 5,000 civilian work force elements in the Coast
Guard. We're trying to make that a turn-on by fiscal year 2005.
We have asked in the President's budget as it came forward for
the resources to do that.
Then onward through 2006 and the Congress, of course, gave
us about 5 years, as I recall, in HSA, to get this accomplished
over time, we would press on then in 2006 and 2007 to complete
that reach to the 110,000 that Congressman Mica asked about,
that number.
Ms. Blackburn. Admiral Loy, may I interrupt you for just
one moment on that? If you would go back and speak within that,
the groups, the headquarters, the different groups you're
planning to implement in 2005, how are you planning to
stairstep these in? Will this be a few each month? Is it going
to be on a quarterly basis? How are you going to work that?
Admiral Loy. We would like to think that we will design the
system to the point that we can turn it on for that wedge of
people in the Department at the same time in fiscal year 2005
and then press on, as I say, to 2006 for other elements of both
the Department and the agencies within the Department.
The design work associated with the construction of that
pay system in order to do that remains a work in progress, and
we continue to work on that diligently and look forward to
working with the committee and anyone else that would be
helpful for us in that process. So as I sit here toady, it is
not a finished product. It is something that we are still in
the design work to get right at the other end of the day.
Ms. Blackburn. Estimated costs?
Admiral Loy. I'd have to get you that for the record,
ma'am, in terms of the design work necessary for that financial
system to support it. I don't have that number off the top of
my head.
Ms. Blackburn. I would appreciate having that. Ms. James,
anything to add?
Ms. James. No, except that I was pleased that as the
Department looked at their implementation that they recognized
the importance of doing it over a staggered period of time and
have a substantial investment that they have asked for in the
budget to make sure that the appropriate training and the
information and education of the work force takes place. I
think those are vital elements, and very often when
transformation takes place in a department, the department
either doesn't take enough time or put enough investment in
dollars to make sure that it is a smooth transition. I think
the Department has done both.
Admiral Loy. We're trying to be very sensitive to what
several members of the committee have mentioned this morning,
and that is the potential for however our system comes out that
it becomes a model of sorts that potentially could go wider
across Government. We're very sensitive to that. Director James
and her staff have held our feet to the fire, so to speak, on
that, day after day after day in the design process. It's
exactly the right thing to do.
We know to a limited degree what's going on in DOD. We are
concentrating on this system to be best for DHS, but there
clearly are implications for across Government best practices
over time and we want to be very sensitive to that.
Ms. Blackburn. Thank you.
Mrs. Davis of Virginia. Thank you, Ms. Blackburn.
Director James, let me just throw this out. One of the
things I've heard is that the managers will be trained. And in
speaking to a group of about 50 managers yesterday, the one
thing I heard the most, in fact I think it was unanimous in the
room, they would like to have a standard for all managers,
required training. I would just suggest that OPM take a real
strong look at that. That might help across the board with some
of these concerns.
Admiral Loy. Yes, ma'am, absolutely it will. We started
last week, I conducted with the Under Secretary for Management
and our Assistant Secretary for Human Capital in the
Department, we had a radio broadcast, TV broadcasted meeting,
an electronic town meeting with the senior leadership in the
Department country-wide, giving them an opportunity to converse
with us initially and open the gates, if you will, to dialog
with the work force and especially the senior leaders.
As we speak, we are in the middle of a 3-day session of
gathered senior executive service members from the Department
out at Westfields in Chantilly. I gave a keynote with them
yesterday, they spent virtually all day yesterday and today
grappling through their responsibilities in the HR system and
giving us additional feedback.
They're now at a point where it's no longer a notion or
somebody's idea, it's upon them and they understand their
obligations in the system. The Secretary spent several hours
with them last night personally to hear them out.
So then the show we take on the road, so to speak, with a
kit that will be consistent for every member of that leadership
cadre in the Department will hopefully provide that constancy
and consistency across the Nation that you just spoke of.
Ms. James. Madam Chairwoman, I heard you and we will take
on that responsibility. I think it's important that as we
educate people about the new system and we bring them all on
board and we inform them, that it's also important that we give
them the tools to train them. Some of this is very technical
and it's very complex. And as it filters down to those who
actually have to implement it and operate it on a daily basis,
they need very specific training to make sure that this happens
in a very smooth way. So we will respond to that and take that
on.
Mrs. Davis of Virginia. You may want to take it a step
further and train all managers throughout the whole Federal
work force.
Admiral Loy. One other mention I would make, Madam
Chairwoman, just as a point of reference, it's enormously
important that we complete one of our performance appraisal
cycles before we pretend we can use those information elements
to make pay decisions. So that cycle is enormously important
for us to get right as well, ma'am.
Mrs. Davis of Virginia. I'd just like to say that we will,
I know I've got some questions I would like to have submitted
for the record. If any other Members have additional questions
of our witnesses today, they can certainly submit them for the
record, then we'd ask you to get that to us.
Ms. Norton. Madam Chairwoman, can I ask for a clarification
of something?
Mrs. Davis of Virginia. Yes, ma'am.
Ms. Norton. Because I asked Admiral Loy a question about
the agency having no discretion, even on its own, to bargain.
And you said that decision could be made at the Secretary's
level. So I went and had them get me your explanation for these
regulations. And if, as I recall your answer, it was that the
Secretary would hold the discretion.
But don't you think this language needs to be clarified? It
said the Department will not be required to bargain over the
Department's exercise of these rights over most of the other
rights enumerated in chapter 71. That doesn't leave the
impression that----
Admiral Loy. There's discretion involved.
Ms. Norton. Right.
Admiral Loy. Let me take that one, Ms. Norton, back, and
we'll look at that real carefully.
Ms. Norton. I'd appreciate that. Thank you, Admiral Loy.
Mrs. Davis of Virginia. Again, I'd like to thank both of
our witnesses for being here today and just reiterate that I'm
a firm believer in collaboration, as I said to both of you
before the hearing. I hope that the effort that's been put into
this human resources system pays off in the creation of
personnel rules that not only help the Department achieve its
mission but are seen as credible by the employees and the
managers.
I want to thank both Secretary Ridge and Director James and
your respective staff for a very thoughtful proposal. And
again, I'm glad to hear that you are keeping everyone involved
in this. And now, if my distinguished co-chair has anything to
say? If not, we will dismiss the panel.
Senator Voinovich. Thank you for coming.
Mrs. Davis of Virginia. With that, again I thank you today,
and we'll move on to panel two.
We're very fortunate to have on our second panel today Mr.
David Walker, the Comptroller General of the United States from
the General Accounting Office. He has a lot of expertise in
Federal personnel reform, and we're very glad to have him here
with us today.
Mr. Walker, it's our pleasure to have you here today. And
as is our custom in this committee, we do swear in our
witnesses. I understand only the first panel was sworn in. If
you would please raise your right hand, I'll administer the
oath.
[Witness sworn.]
Mrs. Davis of Virginia. Let the record reflect that the
witness has answered in the affirmative. You may be seated.
Mr. Walker, we want to again thank you and thank you for
your patience. I'm sorry we've kept you so long here. I'll now
recognize you for 5 minutes for your opening statement.
STATEMENT OF DAVID M. WALKER, COMPTROLLER GENERAL, U.S. GENERAL
ACCOUNTING OFFICE
Mr. Walker. Thank you, Madam Chairwoman Davis, and also
Chairman Voinovich, other members of the subcommittees. Let me
first thank you for the opportunity to appear on this important
topic. Second, let me also commend you on your bipartisan and
bicameral approach to addressing this important issue. And
third, let me thank you this morning for shepherding GAO's bill
to unanimous passage this morning. Let me also thank Senator
Voinovich for his efforts in the past. We might need you one
more time, Senator, it might bounce back to the Senate now.
Mrs. Davis of Virginia. To correct the record, it hasn't
passed yet. It's up for a recorded vote this afternoon.
Mr. Walker. OK, well, I'm confident with your leadership
what the outcome will be.
I have an extensive statement that hopefully can be
included in the record and I'll just end up summarizing very
quickly.
Mrs. Davis of Virginia. That will be fine.
Mr. Walker. First, we're dealing with proposed regulations,
as you know, that were just promulgated this past Friday. And
so my testimony and our statement for the record is based on
our preliminary review of those proposed regulations. Second,
clearly these regulations have significant precedential
implications that go far beyond the Department of Homeland
Security. They could potentially serve as a framework for
action outside the Department of Homeland Security.
Third, the process that has been employed to date is one I
think the Department should be commended for. It has involved a
number of parties, including management, organized labor and a
variety of others, and process is very important when you're
dealing with something as important as basic human capital
policies.
In addition, we know that proposals are always going to be
controversial, so it's important that you have an appropriate
process, because you know that there will be some degree of
controversy no matter what proposals come out of that process,
as is the case here.
In addition, I think it's important to note that many of
the framework proposals in these proposed regulations are
consistent with best practices, some of which frankly were
pioneered by the GAO. So there are a lot of good things in here
that I think the Department should be commended on. But again,
they need to hear public comment.
At the same time, there are at least four areas that I
think are deserving of additional attention. Not to say that
others aren't, but there are four areas that, based on a
preliminary review, really jumped out at me. First, we know
that the past process has been a very inclusive one and a very
open one. We don't know what the future processes will be.
Because right now we have the framework, but there are a lot of
details that have to be worked out, and those details are very
important. So it's important to have a very inclusive and a
transparent process going forward.
Second, the performance management system safeguards, we
believe, need to incorporate the best practices that are in the
report that I'm holding in my right hand, which is being
released today. These represent the best practices for
performance management systems, especially those systems that
are intended to incorporate more modern, effective and credible
pay for performance approaches.
Third, we think it's important to take a hard look at the
appeal standard, structure and scope. What's the standard for
appeals, who would be on these appeal boards, what's the basis
for appointment, for removal, and also what would be the scope
of their authorities.
And last but not least, obviously, there are likely to be
some discussions and debates about the scope of bargaining,
what issues should be bargained or not. But bottom line, we
believe that they undertook a concerted, good faith effort
involving an inclusive process to come up with a set of
proposed regulations. They are now out for notice and comment.
Obviously they will help to inform whatever the final
regulations are. We think there are a lot of best
practices that are incorporated in here, but there are areas
that deserve additional review and consideration.
I'd be happy to answer any questions that any of you may
have. Thank you.
[The prepared statement of Mr. Walker follows:]
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Mrs. Davis of Virginia. Thank you, Mr. Walker.
I just want to followup with the last comment that I made
to the witnesses talking about training for the managers. In my
view, the training that's arising out of this changeover that
we're doing is going to be just huge. I was wondering, based on
your experience, how much training on the new pay
classification and performance management system do you think
would be needed. It seems almost overwhelming.
Mr. Walker. We have had a broad banding system at GAO for a
number of years. We are ahead of the curve in implementing pay
for performance systems at GAO. We've modified ours recently,
within the last couple of years. Training is absolutely of
critical importance. In fact, it is not a one time event. We,
in going to a new state-of-the-art competency based performance
appraisal system that has linked our strategic plan and linked
our pay and promotion decisions, we had extensive training in
year one. But quite frankly, we've had additional training in
year two and anticipate additional training in year three.
I think it is critically important in order to maximize
this chance that you get it right, that it's consistently
applied within and between units and that it's viewed as
credible, equitable and non-discriminatory.
Mrs. Davis of Virginia. Thank you, Mr. Walker. I'm going to
give time now to my colleagues to ask questions. I'm going to
be called for a vote here in one of my committees in probably 1
minute.
I'm going to yield to Ms. Holmes Norton for questions.
Ms. Norton. Thank you very much, Madam Chairwoman. I think
you, Mr. Walker, pointed out the categories of concern that any
agency undergoing this kind of extraordinary change, someone
has, when you're dealing with 170,000 employees, you somehow
mesh them all together for the first time, it's a very delicate
task. Someone has compared it to repairing an airplane while
it's in the air. I just want to make sure that some of the
passengers don't get lost in the process.
The notion of performance based accountability is of course
the rationale for this change, and it's why this change is
occurring. I'm very concerned about how you get accountability
on the part of employees rather than wholesale problems between
supervisors and managers when the regulations do not require,
as they do now, that written performance, the elements of what
is required, be written down, so that standards will be known
and standards set out.
I want to know on three scores, I have problems with this
on three scores. One, how is the employee to know what's
expected of the employee if it's not written down somewhere? I
thought that was kind of the ABCs of accountability. Won't that
result in a he said, she said, you should have known, I wasn't
sure problem? Why in the world would anybody not want to write
what you want people to do, especially when you have a whole
bunch of employees? That's the first thing. How do you get
accountability if nobody has communicated what that is?
I'm particularly concerned, as a former chair of the EEOC,
how one will ever bring an EEO complaint. And one of the things
that we're, the entire Congressional Black Caucus, the entire
Congressional Hispanic Caucus and many Members of this Congress
are going to be looking at is whether or not you are, they are,
dismantling what it took our country 100 years to get, which is
accountability for racial discrimination and gender
discrimination. Well, I don't see how there can be any
accountability or how you can even bring a complaint to the
EEOC when there's no documentation as to what was expected of
you.
And finally, how in the world are you going to hold
managers accountable? If a manager hasn't had to write down
what it is that the managers expect of their employees, this is
what I meant when I asked the prior panel whether they had
looked at best practices. Their answers were entirely
unsatisfactory. So yes, we have.
But I certainly can tell you this, I don't think anybody in
the private sector would say, at least in a big operation, that
we're not going to write down, and don't even ask us to write
down, because it's an administrative burden. Don't ask us to
write down what is expected of you. I don't know what the view
of that is, whether you think it's a best practice or whether
you have any recommendations with respect to not writing down
or having the discretion not to write down what you expect from
your employees.
Mr. Walker. Ms. Holmes Norton, as you know, these are
proposed regulations. My view would be that it is critically
important that performance standards be documented in order to
have a clear understanding between the individual and their
superiors as to what they are expected to do in order to make
sure they are focusing their energy and efforts on those items
and in order to be able to assess their performance and in
order for them to be able to hold themselves accountable for
their performance. I think it's critically important that it be
documented.
Now how you go about doing that can vary. For example, at
GAO, we have adopted a modern, effective and credible
competency based performance appraisal system which was
validated, the competencies were validated by our employees,
not only to gain acceptance but also to minimize litigation
risk, quite frankly. So I think how you go about doing that can
vary----
Ms. Norton. How many employees did you have?
Mr. Walker. We only have about 3,300. We have a number of
occupations----
Ms. Norton. Well, let's----
Mr. Walker. It's a difference.
Ms. Norton. But it's a terrible challenge. What we've done
to this agency is we've put all these folks together and we've
given this agency really a challenge that I don't think any
agency in the world has had. This is a Constitutional system,
this is State action. The response on preponderance of the
evidence bordered on the unconstitutional, when the answer was,
well, we need to do this and--but the Constitution requires due
process of a Federal employer.
I don't believe this can withstand Constitutional scrutiny.
I don't think it can withstand Constitutional scrutiny to say
that you can fire somebody from his job without even telling
him what his job is. And you tell me, well, there are lots of
ways to do it. I want to ask you, is there any other way to do
it if you have 170,000 employees, other than writing it down?
Mr. Walker. I think it needs to be documented. I think the
standards need to be documented. I also think that you need to
have an appropriate safeguard within the Department, outside of
the line, to review for consistency and non-discrimination. I
think that you need to have alternative dispute resolution
procedures, and you need to have qualified, independent appeal
bodies available to employees in the event they believe that
they somehow have not been treated fairly. I think all those
elements are critical components.
Ms. Norton. Would you agree, then, that they haven't begun
to do any of the things you just named?
Mr. Walker. I think they've started, but I think more work
is necessary. And in the four items that I mentioned, some of
the issues that you've talked about are some of the ones that I
think are deserving of additional attention and scrutiny.
Hopefully we'll get it as a result of this comment period and
oversight by the Congress.
Ms. Norton. Thank you, Chairman Voinovich.
Senator Voinovich [assuming Chair]. Following up on
Congresswoman Norton's question, you've been involved in
performance evaluation now for some time. Do you believe that
if you dot the Is and cross the Ts and do the things that are
necessary that performance evaluation can work in the Federal
system?
Mr. Walker. Oh, absolutely. I believe it's critically
important that we move to more of a pay for performance system.
And where we're paying for skills, knowledge and performance,
rather than the passage of time and the rate of inflation.
Senator Voinovich. I think this committee would be
interested in having you identify, benchmark examples of where
pay for performance is working, not only at the General
Accounting Office, but other places, and what were the
ingredients that were in place to make that successful.
Mr. Walker. A number of them are in the document that is
being released today and I would recommend it to you and the
other Members.
Senator Voinovich. Thank you. We're in the position right
now of listening to comments about the proposed regulations.
The fact that we're meeting here today and giving people an
opportunity to express themselves publicly is important.
Could you briefly, give us your thoughts on what are the
strongest elements of the proposed regulations and then share
with us where you think there is some real work that needs to
be done? You've done that in your opening statement, but could
you expand on that?
Mr. Walker. I think conceptually broad banding makes sense,
provided you do a good job of setting up those bands by major
occupational categories, also to potentially consider what some
have referred to as speed bumps, to make sure that you have a
situation to control, to make sure that people don't
automatically get to go to the top of whatever the band is for
compensation purposes irrespective of their performance.
Second, I think the concept of moving more toward a pay
system that compensates people based upon skills, knowledge and
performance, and also an alternative way of looking at locality
based pay has strong conceptual merit. I believe the areas that
require further attention are the ones that I mentioned, and
that is, what are the future processes going to be.
I think it's important that if they're going to go for a
pay for performance system they need to incorporate these
safeguards and best practices. I believe they need to look at
the standard for appeal, the structure for appeals and the
scope of those appeals, are the primary issues. I'm sure that
the next panel will talk about whatever issues they have with
regard to the proposed scope of bargaining as well.
Senator Voinovich. You mentioned the issue of locality. I'm
interested in a proposal to base annual pay raises on, among
other items, market related adjustments. The Federal Government
has had a difficult time comparing certain Federal occupations
across the Government's 32 locality areas, because some of the
occupations don't exist in the private sector.
How do you think this will work for fields such as law
enforcement, and do you think that market related adjustments
will close the pay gap for DHS law enforcement officers in high
cost of living cities?
Mr. Walker. I would hope so. But the fact is, one of the
things we can take some comfort in is that there are benchmarks
for law enforcement all across the United States. Every State
and locality has law enforcement personnel. So that's an area
where I think we should be able to get appropriate compensation
information.
One of the things that was referred to earlier was that
when TSA was set up, because of the additional flexibilities
that they attained, quite frankly, they ended up hiring a bunch
of people from GAO, the Capitol Police and many other
departments and agencies, because they had more pay flexibility
than those other entities did.
So yes, I do believe it's appropriate and possible to come
up with some competitive compensation studies that will do a
much better job of determining appropriate pay by locality than
our current one size fits all approach.
Senator Voinovich. Do you see any changes in the personnel
system that might require additional legislation?
Mr. Walker. My understanding, Mr. Chairman, is that there
are certain restrictions in dealing with the Secret Service and
the TSA, and that they are not covered by all or part of these
proposed regulations. So Congress would have to determine
whether and to what extent it would want to allow them to make
changes dealing with those two particular entities.
Second, I think if I recall correctly, Mr. Chairman, the
safeguards that we came up with, the proposed statutory
safeguards that are included in the GAO bill, that we
recommended be included in the DOD bill. I'm not sure that
they're in this bill.
So to the extent that you would want to think about doing
that, I don't recall whether we were able to get them in or
not, because I think this bill passed well before we worked
those out. So that's something you may want to think about.
Because I think this is precedential across the Government. And
I think that while management needs to have reasonable
flexibility to design different systems, given their missions
and work forces, there ought to be some principles and
safeguards that apply universally throughout the Federal
Government to protect employees and to assure a reasonable
degree of consistency.
Senator Voinovich. I was very much involved in trying to
negotiate some of those human resource provisions for the
Department of Defense. Did those safeguards get into that?
Mr. Walker. Some of them did. But let me just say that the
DHS process is night and day different than the DOD process. I
think DOD could learn a lot from DHS, and hopefully they will.
Senator Voinovich. Some of those that are here today ought
to know that some of us feel that if we can work out a decent
system with DHS, perhaps we might suggest that some of the
things we incorporate in the DHS Personnel System could be
followed over at the Department of Defense. It's going to be
interesting to see as we move down the road which is the more
successful way of getting the job done.
Mr. Walker. Well, there's a big difference in process
already. The other thing that really candidly troubled me
recently is the announced intention of the Department of
Defense to implement a new system for 300,000 people by the end
of this year. But I'm going to speak with Under Secretary Chu
and others within the next week or so to hear more about that.
Senator Voinovich. I would have felt much better if
Secretary Chu and Secretary Rumsfeld had spent some time with
the members of the Governmental Affairs Committee in the U.S.
Senate, talking to us and working on this issue before they
went forward with their program. But again, time will tell.
Regarding TSA, what would be wrong with giving TSA the
authority to give their workers a right to collective
bargaining?
Mr. Walker. That's obviously a decision for the Congress. I
will tell you from a personal standpoint, I believe in
collective bargaining. There may be some limitations in
appropriate circumstances due to national security as to what
issues ought to be bargained. But from a conceptual standpoint,
I think that's something, I believe in it from a conceptual
standpoint, subject to certain limitations. But that's
ultimately a decision for the Congress.
I think whether or not you have bargaining, it's critically
important that you have active and ongoing employee
participation, whether it be through their representatives, the
bargaining units and the leaders of the bargaining units, or
whether, if they are not a member of a union, appropriate
representative employees. If you take GAO, for example, we
don't have a union or unions, but we actively partner with our
employees through a democratically elected employee advisory
council and treat them with the same status as our top
executives in defining and rolling out new proposals that deal
with all our employees.
Ms. Norton. I have just one question. I wonder if I could
get Mr. Walker on record here. Senator Voinovich, this is a
matter that's going to be coming to the Senate, as I
understand, soon. It has to do with the so-called 10 deadly
sins. You may be aware of these 10 deadly sins. In any case,
they were mandatory removal offenses that the IRS could remove
peremptorily.
Now, it is interesting to note that H.R. 1528 has passed
the House that would remove that ability from the IRS. That's
just what that experience has shown us. Nevertheless, mandatory
removal offenses have now popped up in the DHS regulations. At
least at the IRS there was an independent, there was instant
removal but there was independent review, whereas any review
here would be internal and nobody even pretends that's the same
kind of review as is normally thought to be independent.
And the IRS offenses that you could be removed for were
written in statute. So again, we weren't, collecting money is
very important, just as our security is very important, but
somehow, some balance had been found. And yet the experience
had been so faulty that a bipartisan bill repealed this section
of IRS, this IRS provision. Do you believe that mandatory
removal is something that should be written into these
regulations, given the experience we have already had, which
has caused something that seldom happens in this House, which
is the repeal of something that we put into law?
Mr. Walker. First, I believe in my full statement I have
some reference to the fact that I think it's important that
lessons learned from the IRS experience be considered in
determining what should be done with the Department of Homeland
Security. Second, I do think there are certain circumstances
where certain actions should result in removal. At the same
point in time, I think it's important that there be an
appropriate due process, involving qualified and independent
players as a check and balance when you are talking about
somebody losing their job.
So I would be happy to provide additional information for
the record if you would like on that.
Ms. Norton. You think they should be put in law, at least,
or regulations, as the IRS was? We put them in statute. They're
not even in regulations here in DHS. It's at the discretion.
This is the first time I think even anybody thought about this.
At the discretion of the Secretary, without anything written
down, you can be instantly removed.
Mr. Walker. My personal opinion is it should be in either
law or regulation, because both of those will result in some
type of due process consideration of what they are. Then
second, after that ends up happening, then you have to
determine what type of appeal process there might be, if there
is a perceived inequity in the application of whatever the law
or the regulations lay out.
Ms. Norton. Thank you very much, Mr. Walker.
Mr. Walker. Thank you.
Mrs. Davis of Virginia [resuming Chair]. Mr. Walker, as
always, it's been a pleasure having you here. Thank you for
coming to testify. I'm sure some of our members may have
additional questions they want to submit for the record.
Mr. Walker. Thank you, and good luck this afternoon for
both of our sakes.
Mrs. Davis of Virginia. Thank you very much, and thanks for
your patience.
We will now move on to panel three, and I'm sorry to keep
you all waiting. I have some other not so great news for you.
I've just been told we have to be out of the room at 1:15
because the room has been booked for another hearing. So we
need to move on to panel three, and we're very fortunate to
have on our third panel representatives from the three largest
unions at DHS.
First of all, we'll hear from Mr. John Gage, National
President of the American Federation of Government Employees.
Then as always, we're pleased to have back Ms. Colleen Kelley,
national president of the National Treasury Employees Union.
And last but not least, we'll hear from Mike Randall, president
of the National Association of Agriculture Employees.
Again, thank you all very much for being here today and
thank you for your patience. As always, it is the policy of
this committee to swear in our witnesses. So if you would all
please stand and raise your right hands.
[Witnesses sworn.]
Mrs. Davis of Virginia. Let the record reflect that the
witnesses answered in the affirmative.
You may be seated.
Mr. Gage, again, thank you for being here today. You are
now recognized for 5 minutes.
STATEMENTS OF JOHN GAGE, NATIONAL PRESIDENT, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES; COLLEEN M. KELLEY, NATIONAL
PRESIDENT, NATIONAL TREASURY EMPLOYEES UNION; AND MIKE RANDALL,
PRESIDENT, NATIONAL ASSOCIATION OF AGRICULTURAL EMPLOYEES
Mr. Gage. Thank you, Madam Chairwoman.
We have a detailed statement that we submitted with some of
our concerns and recommendations to the overall plan. I wanted
to talk, and of course we met with Secretary Ridge, had a good
discussion with him. I really hope that further discussion with
Secretary Ridge is going to enable us to correct some pretty
glaring problems with the DHS personnel system.
It's just a couple of observations. I mean, getting the
details right on this new personnel system is going to be very,
very difficult. When we see the Department coming out of the
box, intentionally excluding from the system fair checks and
balances to correct mistakes and to safeguard against abuses, I
am pretty shocked about that. And I know your questions about
training, and I think training is going to be a huge issue.
But now that we have all these trained and various degrees
of trained supervisors to start the system off with taking
employees' rights away, where they can contest problems or
abuses or mistakes that these supervisors make is just not the
way it should be. If this system is so good, and when you hear
the personnelists talk about it, well, if it's so good, it
should welcome scrutiny. Slanting the standards of evidence,
minimizing collective bargaining, setting up management as the
sole judge and jury on discipline and pay, employees' sense of
fairness and credibility that they should have in this system,
it's just not going to happen.
When they talk about all the inclusiveness that the DHS
system process went through, it did. It talked with 2,000
employees. Just about all those 2,000 employees said, don't
take our rights away, there's no reason for that, it's not
mission oriented. Almost all of those 2,000 employees said, my
supervisor is going to rate me and determine my base pay and
that concept is very foreign to what we currently have in the
supervisor/employee relationship. And the ability to put up an
appraisal system for 175,000 employees that is going to be done
fairly hasn't been done yet.
Now, to put the extra added attraction that these
supervisors can also determine employees' pay, when in the past
whether they could rate a person fairly at all was in question,
and to take away the employee's right to any appeal or to any
scrutiny, employees are very distraught about this. They are
very concerned about it.
Senator Voinovich asked Admiral Loy, and I've asked him the
same question, give me an example where collective bargaining
stops this agency from doing anything. There are no examples.
When we talk about deployment, that it's a mission issue of
deployment, yes, it very well could be. But it also could be a
supervisor in San Diego re-deploying a border patrol agent or
officer to Texas.
Now, shouldn't there be at least a post-bargaining
discussion, a post-implementation discussion of those types of
arbitrary moves? This isn't Secretary Ridge making these moves.
These are very low level supervisors who can have all kinds of
different agendas going on. And to take employees' rights away
or the union's rights away to at least scrutinize some of these
decisions is really overkill.
I want to make just one other observation. The fact that
TSA employees, these baggage screeners, cannot have any appeal
rights, any collective bargaining rights, is shameful. These
employees are calling us daily with things that are going on in
work sites in airports across the country. You can see the
turnover rates of these folks. We could do a lot, I think, in
stabilizing that work force. I think they're doing a fine job.
I think they're doing a better job than has ever been done at
our airports.
But to say that they have no rights whatsoever and no
collective bargaining rights, and that's some type of a
mission, that nexus hasn't been established. And I think in
this country, when you say that someone has to lose a right,
you'd better well express very clearly how that mission
abrogates those rights. That test hasn't been made for TSA
employees, and we're going to continue fighting to get them the
rights that they deserve.
Thank you, Madam Chairwoman.
[The prepared statement of Mr. Gage follows:]
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Mrs. Davis of Virginia. Thank you, Mr. Gage, as always.
Ms. Kelley, you're now recognized for 5 minutes.
Ms. Kelley. Thank you very much, Chairwoman Davis, Chairman
Voinovich.
I appreciate your having this hearing today for the
subcommittees and having the opportunity to testify on behalf
of the 13,000 employees in the Department of Homeland Security
that NTEU represents.
To assist in the creation of a new HR system, the Secretary
and the new OPM Director assembled a design team that did
include NTEU representatives. While I believe that the
collaborative process worked well in allowing NTEU to offer our
options, to address personnel issues that the Department
identified, I am extremely disappointed with the lack of
inclusion of our or other employee representatives options in
the proposed personnel regulations.
To be successful from NTEU's perspective, any new HR system
must be seen as fair, transparent and credible to employees, or
it will fail. By these standards, the proposed regulations as
written fail in many areas. I will focus my comments today on
three areas, pay, labor relations and due process rights.
NTEU believes that any changes to the pay, performance and
classification systems must be justified by mission needs and
designed to minimize administrative burdens on managers,
supervisors and employees. NTEU does not believe that the pay
system in the proposed regulations meets these tests. During
the research and design process, most employees reported that
they were generally satisfied with the current GS system and
that problems were cited related to the application and
administration of the system by managers, rather than to the
design of the system itself.
Unfortunately, the proposed DHS regs abandon the GS basic
rate system and will provide employees with a radically
different and unproven pay banding system based almost entirely
on management discretion. The plan appears to eliminate even
across the board annual raises, allowing employees in some
locations and occupations to be paid significantly less than
others. The pay band ranges will be set by an extremely
complicated formula based on mission requirements, local labor
market conditions, availability of funds and pay adjustments
received by other Federal employees.
In addition, the President's budget for 2005 request $100
million to design this new system. This money could be put to
much better use by hiring more front line personnel.
On labor relations, the Homeland Security Act requires that
any new human resource management system ``ensure that
employees may organize, bargain collectively and participate
through labor organizations of their own choosing in decisions
which affect them.'' NTEU believes that the proposed
regulations do not meet that statutory requirement. Collective
bargaining disputes will not be subject to independent third
party resolution, but will be resolved by an internal DHS
board. This internal DHS board will replace the independent
FLRA in determining what constitutes an appropriate bargaining
unit for the purposes of union elections. And the scope of
collective bargaining is so dramatically limited that the
requirement that employees be allowed to ``participate through
labor organizations'' is not met.
Under current law, the subjects of collective bargaining
for the most part fall into three categories: management
rights, permissive subjects of bargaining and mandatory
subjects of bargaining. Management rights are now non-
negotiable on the substance, but subject to impact and
implementation bargaining. Permissive subjects bargaining would
be redefined under the proposed regs as management rights, and
again, not subject to bargaining even on impact and
implementation, and as we read the regs, even at the agency's
discretion.
So I'm glad to hear that will be looked at by the
Department, based on Admiral Loy's comments. But even post-
implementation bargaining will not be required on any of these
issues.
Finally, any bargaining left will likely be dramatically
curtailed by a new standard that states, ``proposals that do
not significantly impact a substantial portion of the
bargaining unit are outside the duty to bargain.'' There is no
definition of these terms provided and should there be a
dispute as to whether this standard is met, it will not be
resolved by an independent third party, but by the DHS internal
labor relations board.
On due process, the proposed DHS regs would allow the
Secretary, as we've heard, to define an unlimited number of
offenses requiring mandatory termination without any
independent review of the charges. Now, these DHS mandatory
removal offenses are even more draconian actually than the IRS
deadly sins which have been discussed. At least the IRS deadly
sins are subject to independent review and are set by statute,
not subject to the whim of a current or future Secretary.
It is important to note that President Bush supports
repealing this mandatory termination provision that is in
effect at the IRS. And as Ms. Norton mentioned, this has
currently already passed the House. Now, under the proposed
regs, we've heard that the MSPB appeals process has changed. I
would offer that it has been gutted. The fairness of the MSPB
appeals process is undercut as proposed, with the MSPB not
having the authority to modify agency-imposed penalties and
also changing the burden of proof standard.
In conclusion, NTEU supports the mission and the personnel
of the Department of Homeland Security. NTEU wants the same
thing that I believe everyone who has been involved with the
creation of the Department wants. We want a work place where
employees can be successful and do quality work in an
environment where they will be treated with dignity and
respect, and of course, where the Department can act swiftly
and decisively to protect our country.
Changes in these proposed regulations are needed if the
agency's goal to build a DHS work force capable of
accomplishing its critically important missions is to be
successful. As drafted, these regulations do not provide for a
fair, transparent and credible HR system. And it will fail if
implemented as written.
As I have heard many high ranking DHS officials say on many
occasions, failure is not an option for the Department of
Homeland Security. NTEU looks forward to continuing to work
with Congress, with the administration and the Department to
change these pro-
posed regs and to help the Department design and implement an
HR system that can be successful for the Department, for the
country and for the employees.
Thank you.
[The prepared statement of Ms. Kelley follows:]
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Mrs. Davis of Virginia. Thank you, Ms. Kelley.
And all the way from Honolulu, we have Mr. Randall. Mr.
Randall, you're recognized for 5 minutes.
Mr. Randall. Thank you, Chairwoman Davis, Chairman
Voinovich. I'd like to thank you for the opportunity to come
out and testify out here, even if it's such a long way. I thank
the subcommittee.
I'm Mike Randall, president of the National Association of
Agriculture Employees. Besides being the president of the
National Association of Agriculture Employees, I work for USDA
Plant Protection and Quarantine in Honolulu as a plant
protection and quarantine officer.
We represent the Legacy-Agriculture bargaining unit split
between DHS and USDA in March 2003. We continue to represent
employees in both. We can make comparisons of the two
communications systems and management styles between APHIS-PPQ
and CBP. We can see the before and the after.
Agriculture inspectors perform regulatory compliance work.
They need to make on the spot decisions. They have to take
educated, supportable risks without consulting their
supervisors. They need to have enough authority and not be in
fear of losing their jobs.
Who would think of regulating a walking stick unless it had
insect exit holes, was made of citrus wood or had mud on the
tip? These are all reasons to regulate a walking stick. The
customer is not going to be happy about having his walking
stick regulated. We can try to explain our actions.
Our union collaborated with DHS and the other labor
organizations in the development of the personnel system prior
to the agency making its decision upon the regulation
proposals. We were obviously not in at the decision phase. DHS
and OPM need to materially modify the proposal if they intend
to provide a humane system and an environment that will address
the needs of our specialty in the Department's mission and be
fair to our bargaining unit employees.
The proposed DHS personnel system proposals are designed
for a police or military organization, not at all appropriate
for the civilian labor force. They are not designed to advance
unique missions and goals of protecting American agriculture.
They discourage necessary communication and feedback essential
in the scientific program and instead encourage silence and a
management retaliation. They will not attract and maintain a
highly skilled and motivated work force for performing homeland
security functions and agriculture quarantine inspection
functions. That presages disaster for DHS's mission to the
extent it encompasses protecting American agriculture and food
supply.
In order to make sweeping changes in the personnel system
and be successful in accomplishing DHS's missions, the
Department will need buy-in from the employees. Unfortunately,
given Customs' and Border Protection's refusal to adhere to the
personnel system by which it has been obligated to abide by
March 2003, and its evident lack of desire to improve the lot
of our agriculture bargaining unit employees through purely
administrative actions it could have taken, we do not, and we
cannot trust CBP or DHS in their roll-out of the new personnel
system.
On pay, it's hard to have trust. The changes in pay require
trust. Countless management actions or inactions during the
past year have caused distrust. There have been continuing pay
fiascos where employees have gone up to a month with no pay or
the wrong pay. CBP has imposed shift changes and canceled
overtime, leaving agriculture quarantine work undone. This has
resulted in decrease in pay for most agriculture inspectors.
DHS's pay banding proposal has a component based upon
performance evaluation. Legacy-Agriculture employees are
fearful of this performance component. CBP has inserted other
Legacy agency managers from INS and customers into the front
line agriculture reporting chain. Many Legacy agency managers
from other agencies have demonstrated and continued to show
disdain and disregard for the agriculture protection mission.
These managers are now in our performance evaluation food
chain. As agriculture inspectors know, a bit of bad food in the
food chain can cause Mad Cow.
Labor management relations, no communication is the
apparent goal of DHS. This starts with prohibitions on union
presence at formal meetings and negotiations. Prohibitions
extend to the employee deployment and new technology. These
prohibitions in bargaining are so expansive in scope they
effectively preclude any meaningful negotiations including
anything classified as work or any item that an employee
touches. Bars on negotiations over deployment exclude most
actions employers could perform involving a verb, any verb.
What is not classifiable as a deployment? Not much, if
anything.
The new technology prohibition could preclude negotiations
about safety issues arising from an introduction of a new
technology. Shame. During our first year with CBP, CBP
management showed little to no interest in complying with
existing law and regulations regarding labor relations. CBP
continually violated an FLRA mediated settlement agreement we
reached previously with USDA, an agreement that required
negotiations. They violated a memo issued by Under Secretary
Janet Hill that clearly states that this and other pre-DHS
agreements were binding upon DHS management.
Nevertheless, CBP insisted upon implementing without
negotiation and offered only post-implementation bargaining.
Negotiations have yet to occur, despite numerous requests.
Often, CBP wrongfully claims national security. An example
is a refusal to provide the union a list of the employees we
represent in their work locations, a contract requirement
ignored. I guess they just don't want us to know who we
represent and where they're at.
Even when CBP does not assert national security, it
implements countless changes without negotiating, occasionally
offering post-implementation bargaining. This is another way to
say, we really don't want to negotiate with labor and the
employees it represents. We spit on your contracts and
agreements. It does not please the king.
CBP, a law enforcement agency, should observe the law, not
flaunt it. Now, DHS would change the rules to legalize all
CBP's transgressions. Where are we going with this personnel
system? Many of these proposed personnel system changes will
cement the foundation of an authoritarian law enforcement work
place. Agriculture work is regulatory enforcement compliance
from the public as sought, not extracted. Agriculture work
requires that input be taken from the field.
Changes in a scientifically sound program must be
suggested, observed and tested from the field from the front
line. These things cannot be dictated from central control, top
down management, particularly from CBP management, dominated by
former Customs managers, who have zero training, experience or
understanding of the agriculture mission and no desire to
learn.
Mrs. Davis of Virginia. Mr. Randall, I don't mean to be
rude and interrupt you here, but we have your full statement in
the record. Could you summarize it? I know that Senator
Voinovich has to leave, and we have to be out of the room. We'd
like to have time for questions.
Mr. Randall. DHS needs professional, experienced,
scientifically schooled agriculture inspectors to continue the
agriculture mission. It will not succeed should DHS-CBP decide
to replace these inspectors with generic law enforcement types.
Many agriculture inspectors have been offended by the CBP
management style, they are being chased away from the agency.
Career change is at the center of discussion with many long
term employees not yet at the retirement threshold.
With communication, trust can be built. Without
communication, there is no trust and the system fails. There
are a number of good ideas in the proposal; however, there is
too much in the proposal that thwarts communication and kills
mutual respect and trust. These proposals do not meet the
standards and values the collaborative groups set. Diversity is
another one of these values.
Thank you, Chairwoman Davis and Chairman Voinovich. Thank
you for the opportunity to fly all the way out here from
Honolulu and I hope everybody has a good lunch.
[The prepared statement of Mr. Randall follows:]
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Mrs. Davis of Virginia. Thank you, Mr. Randall, and I
appreciate your flying all the way out here from Honolulu, and
sorry you had to come from warm weather to cold weather. And I
hope I get lunch today. I'm not sure I'm going to. And I doubt
Senator Voinovich is, either.
Senator Voinovich, I'm going to go to you first, because I
know you have to leave.
Senator Voinovich. First of all, I want to thank you for
being here. I also want to thank you for the input that you've
had in this, I think it was 10 months of dialog between the
unions and the people in the Department. I'm a little
disappointed, Mr. Gage, that you feel that some of the
observations that your folks had were ignored in terms of some
of the final regulations.
One of the reasons why we're having this hearing is to give
you a chance, as I mentioned earlier, to air your concerns
publicly about this in hopes that we can see some changes made
during this period. And I welcome, and I know you've got them
it in your statement, your thoughts as to what are the key
issues that you really think need to be addressed for this to
be a successful operation.
Second, Mr. Randall, it appears from what I can glean from
your testimony that part of your concern about these new regs
is the very bad experience that your people have had who have
been transferred over to this new department, is that correct?
Mr. Randall. Absolutely. Our structure, anybody above GS-13
has been removed from our working environment in agriculture,
shipped off to admin, to enforcement, to intelligence. Very few
times has anybody from Agriculture been selected to command an
overall operation in a port situation. Those people are gone,
our organization has just been slipped into the Customs
organization that is insensitive to the agriculture mission.
We have important homeland work to do, we're willing to do
it, we have to continue doing the agriculture work 24 hours a
day. It cannot stop being done for a moment, because the
chances of letting in something agricultural, you can weigh
that against the terrorism risk. It's ever-present. It's just
as bad.
Senator Voinovich. That's something that I'm going to look
into. One of the concerns that I think all of us had was that
if you integrated various agencies into this new department,
what kind of an experience would it be for them. Obviously
yours hasn't been very good, and I think you've raised some
legitimate concerns here.
One of the things that I was worried about in the beginning
was the collaborative process. Many of you may know I would
have liked to have seen mandatory arbitration, because I felt
that arbitration might lead to more openness and
responsiveness. Could you share with me your observations about
the process and what was good about it? What part of it most
bothered you?
Ms. Kelley. Well, I would say, Senator, that the process
was good, as far as it went. It just did not go far enough. Our
involvement was around data collection, information gathering
and information sharing, all of which was wide open and shared
with all the members of the design team.
But the inclusion and collaboration stopped there. There
was no collaboration on prioritizing the options presented to
solve the problems, talking about which pieces could be used
from different options to come up with a solution. And in most
areas where there were a range of options identified to solve a
problem the Department identified that was a valid issue, they
seemed to have always chosen the extreme solution, rather than
one that would solve the problem they identified.
So we were not involved at all in decisionmaking leading up
to these proposed regs. I mean, it stopped with information
sharing. And then of course, we did have the SRC meeting, the
open hearing. But it was, the things that are in these
regulations were a surprise. They do not reflect NTEU's work as
a part of this design team. And no explanation----
Senator Voinovich. The point is that you were on the design
team, but that design team dealt with the issues you just
mentioned?
Ms. Kelley. It was fact gathering, data collection,
information sharing.
Senator Voinovich. Information sharing. But then who made
the recommendations for the regulations?
Ms. Kelley. We had no role in that. DHS and OPM did that.
Senator Voinovich. What was the steering committee?
Ms. Kelley. The senior review committee, we had a 3-day
hearing where we talked about issues as a result of
presentations of the design team, and from there, the
Department and OPM went off to write the regulations.
Senator Voinovich. I think Director James and Admiral Loy
mentioned the ``senior design team.''
Ms. Kelley. The senior review committee.
Senator Voinovich. Were you on the senior review committee?
Ms. Kelley. I was. We all were. That was the 3-day meeting.
Senator Voinovich. So that was the senior review committee.
Ms. Kelley. Yes.
Senator Voinovich. They heard from you during that 3 day
period. And then after that was over, you're not sure who got
in the room and decided on----
Ms. Kelley. I know it wasn't us. Now, there has been
ongoing access and communication. I mean, if we need to talk to
the Secretary or OPM, we have those opportunities to ask
questions and they're clarifying questions. But I have never
received an explanation as to why the most extreme solutions to
the issues were put in these proposed regs versus other options
that had been put forth that would have addressed the
Department's issues.
Senator Voinovich. All right. Was it more open than you
expected it would be? I know we talked before about what was
going to happen. I was concerned that they would go off and
quickly make decisions, and Director James indicated to me that
she wasn't going to do that, they were going to try to get as
much input as possible.
Ms. Kelley. I think the information sharing and data
collection was wide open and it was transparent and it was all
inclusive. That part of it was. But at one point, we had asked
that the 52 options that were being presented to the senior
design committee, that the design team would do more to
prioritize them, to perhaps pare them down and present the top
8 or 10 to the senior review committee. And those
recommendations were declined.
Senator Voinovich. So what happened was that they developed
the recommendations, you got the information and then they met
with you in that 3 day period and talked about the 52 options?
Ms. Kelley. Yes.
Senator Voinovich. And the 52 options were related to the 6
areas that they were looking at?
Ms. Kelley. Yes.
Senator Voinovich. OK. What you're saying is that those
were discussed during the 3-days, and that you feel some of the
options that were more palatable to your way of thinking were
ignored and that the ones that you considered more extreme were
the ones that got preference, is that right?
Ms. Kelley. Yes. And I would add, not only that were more
palatable to NTEU, but that solved the problem the Department
identified. For example, the speed with which appeals are heard
and resolved, the speed with which bargaining is conducted. We
proposed and were willing to come up with solutions that would
have addressed those issues as defined.
So I wouldn't even say it was just about palatable. We
provided options and supported options that solved the problem
they identified.
Senator Voinovich. In your opinion, they did what fulfilled
the mission they were trying to accomplish?
Ms. Kelley. Yes.
Senator Voinovich. Have you compared the proposed
regulations side by side with your preferences?
Ms. Kelley. We are in that process now, of course, with the
167 pages. We are doing exactly that, and we will be responding
to all of them, even much more than what you heard from us
today. Because there are single words in those 167 pages that
make a big difference that we didn't even have the opportunity
to talk about today.
But yes, we will be aligning those and show what solutions
could be implemented that solve the Department's problems and
are appropriate solutions that are not extreme. We will be
doing that.
Senator Voinovich. I think that the members of our
committee would be interested in your views on those options.
That would be very helpful to us, and perhaps we can also weigh
in and share those with the Director and Mr. Loy and Secretary
Ridge.
Ms. Kelley. That would be great, thank you.
Senator Voinovich. Mr. Gage.
Mr. Gage. The concern I have on the design team, and
especially the 3-day meeting is that there was a disconnect
between HR types and operational managers. And I think in our
debate, and when we were talking about these things, I thought
there was somewhat of a movement among the operational managers
that when you discussed these things from a practitioner's
point of view on behalf of employees that they really didn't
understand what a lot of these things would do, and the time
and money and what a huge change it was going to entail on the
work site, in the middle of this critical mission.
That's the thing I'm still concerned about with Homeland
Security. Going into some really radical moves here at a time
when the agency is new and when there's strain on the
management anyway. I'm really hoping that Secretary Ridge will
look at this from not the theoretical abstract HR point of
view, but from a real operational one, and see that some of the
things we're saying really make sense from an operational point
of view.
Senator Voinovich. So your observation is that the human
resources people prevailed over the operational people?
Mr. Gage. Yes, at this point. Hopefully it's not over yet.
Senator Voinovich. Well, one of the things we've been
trying to do is to bring HR people up and give them more input
into the process. But what you're saying is, they've come up
with a lot of ideas, but from a practical point of view, you
don't think some of them make sense.
Mr. Gage. I would hope their input period is over.
[Laughter.]
Senator Voinovich. I would like, if you feel comfortable,
for you to share with me some of the complaints that you have
received from TSA employees. I must tell you that since I've
had my pacemaker installed, I've really gotten to know some of
the people in TSA quite well. [Laughter.]
I've been all over the country, and I really go out of the
way to stop and talk to TSA employees and you're right, there's
a lot of unhappiness. But I'd say it's 50-50. Some say things
are fine, others say we've got problems. One thing that I have
observed, though, is that the managers really have not had the
training that they need to do the job that they're supposed to
do.
And the difference from one place to another is absolutely
astounding. It is my understanding that TSA may eventually be
merged into the new personnel system. It seems to me that if
they're going to do that, then it might make sense to give the
opportunity to TSA employees to bargain collectively.
Mr. Gage. It's so incredible that they know that there's
all these problems, but the No. 1 thing is, you can't give an
employee the right to contest anything. And that just doesn't
add up to me. When you know there's things going wrong, and
employees really have nowhere to turn, that's the thing that
breaks your heart about this and I think really causes a great
sense of frustration in our work force there.
Senator Voinovich. Well, again, I'm interested in getting
your best information on the options and what you think the
alternatives could be.
Mr. Gage. Thank you, Senator.
Senator Voinovich. I'm going to excuse myself. I apologize
for running out. But again, thank you for all of the work that
you have done, and I hope to continue to work with you in the
future. There's a whole lot more on the table. One of these
days I'd like to have a hearing on the Defense Department.
Mrs. Davis of Virginia. When you do, I think I might like
to join you.
Thank you, Senator.
Senator Voinovich. Madam Chairwoman, thank you very much.
I've enjoyed working with you, and I look forward to working
with you in the future. Hopefully this afternoon we'll get GAO.
Mrs. Davis of Virginia. I hope so. Thank you, sir.
And again, I apologize to our panel. They have scheduled
this room for another hearing, so we're being pushed out. But I
do want to, Mr. Gage and Ms. Kelley, ask you this. I was real
pleased to hear Director James and Admiral Loy talk about the
collaboration and the openness and thought that you all were
going to be happy about that.
But I'm really disappointed to hear that the openness was
basically just for fact finding information. And in that
regard, I assume you had the ability to give some
recommendations. And if so, were any of your recommendations,
Mr. Gage or Ms. Kelley, were any of your recommendations, even
1 minute one, were any of them used?
Mr. Gage. Well, in the key area of employee appeals,
collective bargaining, no.
Ms. Kelley. And in pay, I would also add no. What I would
say about the openness of the process on the information
gathering is that was a very positive experience for me and for
NTEU. Because very often in dealing with agencies, even in a
bargaining environment, we are constantly chasing information
and trying to get the facts upon which they are relying. In
this case, I do feel that we have all the information that they
are looking at. But we were excluded from any impact on the
decisionmaking process.
We did put forth options that, as I said, as we put them up
in the design process, I will put them up tomorrow, send them
to you and to Senator Voinovich as he requested, to show that
the options we put forth solved the problems that the
Department identified. And yet they were not adopted.
Mrs. Davis of Virginia. Did the Department give you any
reason why they did not use your options, the ones you
preferred?
Ms. Kelley. No. In fact, probably the one thing I haven't
said about the process that needs to be said is, what was
missing from what I describe as a true collaboration is, at the
point of where data collection was over, there was no give or
take. There has been no response, at least to me, and I don't
know about John or Mike.
But I have had no response as to why our options were not
adopted. We have just seen what it is they proposed and without
exception, I would define it as, they chose the extreme
solution to the problem rather than other viable solutions that
met their needs and were better decisions for the Department
and for employees.
Mrs. Davis of Virginia. But now they have to go back, you
go back and you write down what you don't like. Do they then
not have to come back to us and tell us why? Is that not
correct? They have to come back to us and explain why they did
what they did?
Ms. Kelley. Yes.
Mr. Gage. What we don't agree to. But the thing that is in
these things, I mean, OK, they set up a board and they say,
we're going to have collective bargaining. But then they get
cute and we talked about gamesmanship, I heard Congressman Mica
talking about it. All right, let's not have gamesmanship on
either side, and you don't define collective bargaining in a
way that really neutralizes it, or you don't tell the MSPB that
they can't mitigate an action. That's ridiculous when it comes
to due process.
And I think if we get some of those things out, well, I
just hope Secretary Ridge, when we can sit down and explain
exactly what these things mean, and how they will hurt the
employees, and they really don't put any type of fairness into
the system, that he's going to be, we're going to be able to, a
little more than tinkering, but just putting fair definitions
to some of these due press issues would help me along in this
process a whole bunch.
Mrs. Davis of Virginia. Well, I certainly understand why
DHS and DOD have to have a streamlined process, especially with
some of the cases, with the collective bargaining. And you both
know I don't have a problem with that.
Mr. Gage. Neither do we.
Ms. Kelley. We offered streamlined processes. Very, very
streamlined processes in our options. And you did not see them
in these proposed regulations.
Mrs. Davis of Virginia. I'm not asking some of the
questions that I need to have on record, but let me go to that
again. How quickly would your streamlined process work?
Ms. Kelley. I believe there were two different options. One
offered 15 days, one offered 7. And neither of those are
included, and in fact, post-implementation bargaining is not
included in these proposed regulations, not even after the
fact.
Mrs. Davis of Virginia. I think that goes to one of my
questions I had for you, Ms. Kelley. Can you elaborate on that
post-implementation bargaining, how would it work and was it a
proposal that you put forward during the consultations and
rejected?
Ms. Kelley. Yes. It definitely was a proposal.
Mrs. Davis of Virginia. Can you elaborate on it, so I'll
understand it?
Ms. Kelley. This will be one of the best examples. At ports
across the country, new shifts are created every day, because
of whatever information or intelligence are received. And we
accept the Department's need at times to put the shift in place
today, to staff it with eight people, eight employees who meet
certain qualifications.
In the cases where they would do that for emergency reasons
without even a streamlined bargaining process, once they
establish it and everything has been taken care of and we're
safe, then a post-implementation process would allow us to
bargain over the procedures used to staff these shifts in the
future, so that if employees have child care issues, elder
care, working spouses where they prefer a night shift versus a
day shift, they would have an opportunity through the processes
we would negotiate to express their preferences, perhaps
received those assignments, we would suggest probably by
seniority.
But the Department gets to describe and define the
qualifications of the employees who can even bid on those
shifts. So all of their controls from a business perspective is
there. They define the shift they need covered, the number of
employees, the qualifications of the employees. And what we
would have the opportunity to bargain after the fact and for in
the future, for the long run is how that shift is staffed, so
employees can express a preference and have some say as they do
today, and as they have done for years.
Mrs. Davis of Virginia. But it doesn't stop the Department
from accomplishing the mission that they had at that particular
moment.
Ms. Kelley. No, it does not. They act, they do what they
need to do, and they assign the eight people. And then after
the fact, on the assumption, our assumption is this will
continue whether it's for 30, 60, 90 days or a year, so let's
talk about the assignment, how that happens in the future with
employee involvement. That's what post-implementation
bargaining would be. And that scenario plays out day after day
in port after port across this country, throughout CBP.
Mrs. Davis of Virginia. I'm going to be interested in
hearing from DHS why they rejected that particular proposal.
Let me see if I have any other quick questions I can ask.
I'm sure I'm going to have some for the record, if I could get
you all to respond back. Just out of curiosity, Mr. Gage, how
many of the 50,000 employees at DHS who are represented by
AFGE, how many are dues-paying members, do you know?
Mr. Gage. In the Border Patrol, we are very heavily
organized. We have over, I think we have about 9,000 or 10,000.
We're probably at about 65 or 70 percent ratio in the Border
Patrol. In INS, it's lower than that. But I'm trying to think,
in the new CBP, for instance, we have, it's probably more of
like a 40 percent ratio of union members, 35, 40 percent in the
Legacy-INS area. Then we have a lot of small, we have some
attorneys and the membership there is a little lower. But it
really depends on the group. The Border Patrol is probably the
most highly organized.
Mrs. Davis of Virginia. Is there any way for you to get
back to me on a number?
Mr. Gage. Sure.
Mrs. Davis of Virginia. If you could, overall. Don't break
it down in agencies, but overall of the 50,000, just so we'll
have it. It would give me some idea of what we're looking at.
Mr. Gage. OK.
Mrs. Davis of Virginia. And I have one last question, and
then we're going to have to dismiss. Ms. Kelley, the
regulations as you've said cut back on collective bargaining.
But the statement by the Department insists that they're
willing to work collaboratively with the unions, even in areas
where bargaining is not required. Do you see that as an
opportunity to work with them?
Ms. Kelley. I know that's what they say. I don't believe
that it will happen. I believe there will be enough leeway in
the advice that is given that it will not be encouraged,
supported, that managers won't be held accountable to do it,
and because there is not bargaining, it will be an excuse to
not discuss, collaborate, share information or do anything.
In our experience, over the past year, as a lot of new
issues have come forward, because of the combination of so many
employees into CBP, for example, we have seen exactly that,
that they have run roughshod over the process even that is in
place today.
Mrs. Davis of Virginia. I think we all agree, and you all
shook your heads and agreed with me earlier that there does
need to be some changes. As with anything, and I'm one of the
first ones guilty of it, change is scary. It makes people
nervous, especially when you're talking about their livelihood.
I'm hoping that we can all work together and come up with
something that's good for our Federal employees. Because you
are an asset to us.
The one thing that I have been very pleased with AFGE in,
and with NTEU, is that the times I've spoken to you, we haven't
always agree, but we've always been open and discussed the
issues. I'm hoping we can continue that process.
And as always, I thank you all for coming and for being
witnesses today for us. Hopefully we can work through this and
get some sort of model that will be good for our Federal
employees down the road. We're going to have some bumps, and we
all know that. I'm hoping that these hearings will make it open
and we can get over those bumps without too many injuries along
the way.
Anything else?
[No response.]
Mrs. Davis of Virginia. I thank you all for coming, and
again thank you for your patience. With that, the hearing is
adjourned.
[Whereupon, at 1:05 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
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