<DOC> [110 Senate Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:33877.wais] S. Hrg. 110-115 A REVIEW OF THE TRANSPORTATION SECURITY ADMINISTRATION PERSONNEL SYSTEM ======================================================================= HEARING before the OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE DISTRICT OF COLUMBIA SUBCOMMITTEE of the COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS FIRST SESSION __________ MARCH 5, 2007 __________ Available via http://www.access.gpo.gov/congress/senate Printed for the use of the Committee on Homeland Security and Governmental Affairs U.S. GOVERNMENT PRINTING OFFICE 33-877 PDF WASHINGTON DC: 2007 --------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800 DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS JOSEPH I. LIEBERMAN, Connecticut, Chairman CARL LEVIN, Michigan SUSAN M. COLLINS, Maine DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia JON TESTER, Montana JOHN E. SUNUNU, New Hampshire Michael L. Alexander, Staff Director Brandon L. Milhorn, Minority Staff Director Trina Driessnack Tyrer, Chief Clerk SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE DISTRICT OF COLUMBIA DANIEL K. AKAKA, Hawaii, Chairman CARL LEVIN, Michigan GEORGE V. VOINOVICH, Ohio THOMAS R. CARPER, Delaware TED STEVENS, Alaska MARK L. PRYOR, Arkansas TOM COBURN, Oklahoma MARY L. LANDRIEU, Louisiana JOHN WARNER, Virginia Richard J. Kessler, Staff Director Jennifer A. Hemingway, Minority Staff Director Emily Marthaler, Chief Clerk C O N T E N T S ------ Opening statements: Page Senator Akaka................................................ 1 Senator Voinovich............................................ 3 Senator Coburn............................................... 5 Senator Collins.............................................. 5 Senator Warner............................................... 6 WITNESSES Monday, March 5, 2007 Kip Hawley, Assistant Secretary/Administrator, Transportation Security Administration, U.S. Department of Homeland Security.. 7 John Gage, National President, American Federation of Government Employees...................................................... 24 Alphabetical List of Witnesses Gage, John: Testimony.................................................... 24 Prepared statement........................................... 83 Responses to questions for the Record........................ 93 Hawley, Kip: Testimony.................................................... 7 Prepared statement........................................... 35 Responses to questions for the Record........................ 41 APPENDIX Charts submitted for the Record.................................. 95 Letter to President Bush from Senators concerning S. 4........... 100 Colleen M. Kelley, NTEU National President, prepared statement... 102 Letter to Senator Akaka from Art Gordon, National President, Federal Law Enforcement Officers Association, dated March 2, 2007........................................................... 110 Article from the Washington Post, March 5, 2007.................. 111 A REVIEW OF THE TRANSPORTATION SECURITY ADMINISTRATION PERSONNEL SYSTEM ---------- MONDAY, MARCH 5, 2007 U.S. Senate, Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia, of the Committee on Homeland Security and Governmental Affairs, Washington, DC. The Subcommittee met, pursuant to notice, at 2:30 p.m., in room SD-342, Dirksen Senate Office Building, Hon. Daniel K. Akaka, Chairman of the Subcommittee, presiding. Present: Senators Akaka, Voinovich, Coburn, Warner, and Collins (ex officio). OPENING STATEMENT OF CHAIRMAN AKAKA Chairman Akaka. This hearing of this Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia will come to order. We are here today to discuss the personnel system for Transportation Security Officers at the Transportation Security Administration (TSA). I am very pleased to welcome TSA Administrator Kip Hawley and the President of the American Federation of Government Employees, John Gage, to the Subcommittee. TSA was created in response to the attacks of September 11, 2001, when terrorists hijacked four planes, crashing two into the World Trade Center, one into the Pentagon, and another in a field in Pennsylvania. That terrible day was a wake-up call for America to increase our security efforts and ensure that such attacks never happen again. To secure the aviation industry, Congress passed the Aviation and Transportation Security Act (ATSA), which, among other things, created the Transportation Security Administration and federalized the aviation screening workforce. In designing the TSA, the Act required the TSA to follow the personnel system for the Federal Aviation Administration. However, the agency was allowed to employ, appoint, discipline, terminate, and fix the compensation terms and conditions of employment for the TSOs without regard to other laws. A year later, Congress passed the Homeland Security Act to merge 22 agencies, including TSA, into a Department of Homeland Security in an effort to improve the Federal Government's ability to prevent and respond to terrorist attacks. The Homeland Security Act also provided broad personnel flexibility to DHS in order to quickly respond to threats and ensure that the Secretary had the flexibility to move resources as needed. However, the Act provided that DHS employees would have an independent and fair appeals process, full whistleblower rights, and collective bargaining. TSA was not included in this personnel system, and as a result, TSOs are left without many of the statutory protections in place for DHS employees. In my opinion, a lack of employee rights and protections has resulted in TSA facing high attrition rates, high numbers of workers' compensation claims, and low employee morale. Without a fair process to bring whistleblower complaints, employees are constrained in coming forward to disclose problems leading to worker injuries or, more importantly, vulnerabilities to national security. Without collective bargaining, employees have no voice in their working conditions, which could drastically reduce attrition rates. TSA has made improvements in managing the screening workforce, but we must build upon these efforts and give employees a real place at the table. Protecting employees from retaliatory action complements efforts to secure our Nation. Strong employee rights and protections ensure that we have a screener workforce focused on their mission and not preoccupied by fear of retaliatory treatment by management. On January 9, 2007, the House of Representatives passed H.R. 1 to implement the recommendations of the 9/11 Commission. On February 17, the Homeland Security and Governmental Affairs Committee reported out the Senate companion, S. 4. Both bills contain provisions to require the Secretary of DHS to place TSA under either the FAA or the DHS personnel system. Today's hearing will provide an opportunity to gather the facts on the need for the proposal, as well as how such a proposal, if passed, could be implemented. I believe it is time to ensure that TSA screeners are provided the same rights and protections as all other employees at DHS. I also believe that by denying TSA screeners the same rights provided to other DHS employees, we are reinforcing the very stovepipes we sought to tear down by consolidating agencies within DHS. Before I turn to my good friend over the years and former Chairman of this Subcommittee, Senator Voinovich, for any opening statement he would like to make, I ask unanimous consent that a statement from the National Treasury Employees Union and a letter from the Federal Law Enforcement Officers Association be included in the record. And I would also like to note that both documents are available to the public.\1\ --------------------------------------------------------------------------- \1\ The prepared statement from the National Treasury Employees Union and a letter from the Federal Law Enforcement Officers Association appears in the Appendix on pages 102 and 110 respectively. --------------------------------------------------------------------------- Senator Akaka. Sentor Voinovich. OPENING STATEMENT OF SENATOR VOINOVICH Senator Voinovich. Thank you, Senator Akaka. I really appreciate you holding this hearing today. You and I have worked together for many years to ensure the Federal Government has the ability to put the right people in the right place with the right knowledge and skills at the right time. I would like to remind everyone of the great debate on TSA over whether screeners should be Federal or private sector employees. I can remember being at meetings with some of my colleagues on the Republican side where they indicated that they thought the government should not employ screeners. I told them I would take my Cleveland police or my State patrol and put them up against any people in the private sector. As everyone knows, screeners are Federal employees, and thousands were hired in less than a year to stand up the agency. Now, during this Committee's markup to consider the 9/11 bill, an amendment was adopted that would eliminate the Transportation Security Administration's authority to develop and manage an independent personnel system. At that time, I think I observed that we had not even had a hearing. So again, Senator Akaka, I appreciate you having this hearing today. I have an opportunity to meet and talk with TSA screeners almost twice a week. In fact, I get patted down every week, and I have told them I could teach them how to do it. These screeners are hard-working, dedicated Americans with the immense responsibility of keeping air travelers safe. They are to be commended for their work, and I would like to extend a special welcome to the TSA screeners who work at Cleveland Hopkins International Airport: Joseph Gattarello and Karen Budnik, who are in attendance today. The September 11, 2001, attacks revealed numerous shortcomings in our Nation's capacity to detect potential terrorist threats and respond effectively. In response, Congress enacted a number of reforms designed to address current and future national security threats, including the creation of TSA. Since its creation, TSA has been subjected to several reorganizations, both congressional and executive. TSA was originally housed in the Department of Transportation and was tasked with hiring 55,000 screeners within 1 year. What an enormous task. This problem was complicated by the fact that the traditional employment pool from which TSA had to hire, those previously conducting airport screening, had attrition rates of 125 to 400 percent. That was another reason why I did not think it made any sense to let the private sector continue to be responsible for screening. In 2003, TSA was transferred to the Department of Homeland Security. Along the way, TSA has faced many hurdles in its attempt to transform itself into a high-performing, robust organization. Personnel challenges are at the top of this list, whether they be attrition of part-time workers, on-the-job injuries, or the need to appropriately reward employees. Many are concerned that creating another new personnel system at this point would further hinder TSA's progress, admittedly less than desired in some cases, in overcoming the challenges it faced when it opened its doors. Last August, information of one of the most serious threats to our homeland was shared with TSA. Just hours prior to the public announcement, TSA made and finalized the most fundamental change in airport security since September 11. That changed was finished by senior officials at 2:21 a.m. on August 10. The new security measures prohibited bringing any liquid, gels, or aerosols onto an airplane. At 4 a.m., when Transportation Security Officers arrived for the first shifts on the East Coast, they were briefed and trained on the new security procedures, which they then implemented immediately upon opening the first security checkpoints. It was the most magnificent change in airport security since September 11, and it all happened in less than 6 hours from the time of the arrest of the alleged terrorist in the United Kingdom. Hypothetically speaking, if TSA were subject to collective bargaining as proposed by S. 4, it may have had to go through the process of declaring an emergency prior to taking action necessary to carry out its mission. I think we all agree that the thwarted terrorist plot against U.S. air carriers was indeed an emergency. We understand that. Under other circumstances, however, whether and when the statutory definition of an emergency situation would be applicable to TSA is unclear. Even a minor snowstorm can wreak havoc on our air transportation systems, requiring TSA to work in concert with the airlines to accommodate the resulting spikes in passenger volume. Under current law, TSA has the flexibility to reassign personnel on a real-time basis in response to any situation. Under S. 4, would TSA have to declare the minor snowstorm an emergency in order to immediately reassign its personnel? One of the things that I learned firsthand as mayor, and then governor, is that there is always room for improvement in human capital management. Accordingly, I understand the reason for the proposal in the underlying bill. It may well make sense for Congress to enact legislation providing TSA employees with the right to appeal adverse actions before the Merit Systems Protection Board and to seek protection for whistleblower claims with the Office of Special Counsel. However, it is important to note that the existing agreement for the review of whistleblower claims is an example of how TSA has responded to the needs of its employees. The statutory ability to appeal to the MSPB and OSC could be an important safeguard for screeners to help ensure due process. The proposal in S. 4 is well intended; however, I am concerned that Congress has not fully considered its impact and the need to balance the changes that would be required against the potential disruption to our air transportation security system. I am committed to working with my colleagues to continue to improve TSA. Although much work remains to be done, the progress made to date on certain issues, such as the reduction in worksite injuries, is encouraging. More importantly, I think it reflects the sincere desire on the agency's part to take any steps necessary to create a good working environment for its employees. I hope that we can find a workable solution that strikes the right balance between promoting a flexible system and protecting the rights of individuals who choose to serve as screeners. I look forward to learning from our witnesses how this can best be accomplished. Thank you. Chairman Akaka. Thank you very much, Senator Voinovich. I am so glad we have other Subcommittee Members here. I would like to call on Senator Coburn for any statement he would like to make. OPENING STATEMENT OF SENATOR COBURN Senator Coburn. Thank you, Senator Akaka. I appreciate you having this hearing. I think this hearing is about 3 months late. This is already part of the bill. It has already had an amendment on the floor. And the American public should be disgusted with the process. No hearings were held on this prior to the Committee markup of a major change in the security at airports in this country. None. That is us not doing our job properly. And we are having this hearing because I specifically made a point during the markup that we had not had any hearing on this issue. The issue is now considered a kind of backdraft solution because it does not matter what we find here today. The bill is on the floor. It is already part of the bill. And the President has already said he will veto the bill if this is in it. So we could have crafted legislation to more favorably impact TSA employees had we had a hearing long before we had a rush markup on a 9/11 bill. I look forward to hearing the very real needs of the Transportation Security employees in this country and looking at how we address those and finding what is best for the government, good for them, good for the traveling public, and the security of this country. Doing this after the fact, although I am very appreciative that it is happening, I think says a whole lot about how the Senate operates. And it is not unusual that we do things this way, and the American public ought to demand a change. And this is in no way to reflect on Senator Akaka. Senator Akaka recognizes that this bill was rushed. It is a leadership bill. It was told to get out, and so it came through. So I am not upset with Senator Akaka at all. I am very pleased that he is having this hearing. But I think this type of action just shows the American public that what we are up to is politics and not good policy. Thank you. Chairman Akaka. Thank you. Senator Warner. Senator Warner. Thank you, Mr. Chairman. Mr. Chairman, as a courtesy, I would like to yield my place to the distinguished Ranking Member of the full Committee, and then I will follow. Chairman Akaka. Thank you very much, Senator Warner. Senator Collins. OPENING STATEMENT OF SENATOR COLLINS Senator Collins. Thank you very much, Senator Akaka, and thanks to my distinguished colleague from Virginia. I very much appreciate, Senator Akaka, that you and Senator Voinovich are holding this much needed hearing. It is an opportunity for us to grapple with a very important issue. Throughout our Committee's work on homeland security, it has become clear that the ability to respond quickly and effectively to changing conditions, to emerging threats, and to new intelligence is essential. From the intelligence community to our first responders, the key to this effective response is the flexibility to put assets and, most important, personnel where they are needed when they are needed. We have to figure out how we can maintain this needed flexibility while at the same time ensuring protections for the employees who are working so hard to safeguard our Nation. It is my hope that this hearing will help both sides of this issue reach across the aisle and stop trying to score political points and instead work together to find a middle ground. And I think, Mr. Chairman, that there is a middle ground in this area. I have been working with some of my colleagues to see if we can come up with legislation that would bring TSA employees under the Whistleblower Protections Act--that makes sense--but also allow appeal to the Merit Systems Protection Board of adverse actions such as demotions or firings. It seems to me that these are important employee rights that we can extend to TSA, and then we should take the next year to more thoroughly study the personnel system to get GAO involved, to get the employees involved, to get the employee representatives involved, and to work with the Department to see if there is more that we can do. Just as we strive to protect our Nation and our people without diminishing civil liberties, we must do all that we can to build a strong homeland security structure that upholds the rights of the personnel who strive so hard to protect us. I hope that we will work to try to achieve this middle ground to give the flexibility that TSA does need, and it has proven that as recently as last summer when the thwarted airliner plot required the redeployment of personnel. So, Mr. Chairman, my plea to everybody here, as well as to our colleagues on both sides of the aisle, is let's sit down, let's take some steps that we can take now without impeding TSA's flexibility while enhancing the employees' rights. Thank you, Mr. Chairman. Chairman Akaka. Thank you very much, Senator Collins. Senator Warner, thank you for your courtesy. You may now proceed with your statement. OPENING STATEMENT OF SENATOR WARNER Senator Warner. Thank you, Chairman Akaka. I would like to associate myself with colleagues here who have indicated that we will try and seek to work this out. I have been privileged here in the Senate for 29 years as a member of this Senate, and on behalf of Virginia, to work with many Federal employee organizations. And I will carefully follow and participate in trying to come to a middle-ground situation. In fairness to those who are present here today at this open public hearing, I think our record should reflect that we had a classified briefing from the intelligence community. This witness before us today, Mr. Hawley, was the principal briefer. But there were very compelling points to that meeting, and I am hopeful that somehow, without compromising any sources, methods, or otherwise, the Chair and the Ranking Member can figure out how best to deal with that intelligence component in such a way that the persons who are advocates here today on behalf of their employees feel that they have as broad an understanding of the reason why certain Senators are making this position and why the President probably is influenced by that intelligence quotient to this important subject in announcing the veto. Also, I would like to put in the public record this letter which 35 Senators, including myself, have signed on behalf of the President, setting forth our concerns regarding this piece of legislation and his representation, the President's representation that it is so serious that he would consider the veto, exercise of the veto.\1\ --------------------------------------------------------------------------- \1\ The letter referred to appears in the Appendix on page 100. --------------------------------------------------------------------------- Chairman Akaka. It will be included in the record. Thank you very much, Senator Warner. At this time I want to again welcome Assistant Secretary Kip Hawley, the Administrator of TSA. I ask for you to stand with me and raise your right hand as it is the custom of this Subcommittee to swear in all witnesses. Do you solemnly swear that the testimony you are about to give to this Subcommittee is the truth, the whole truth, and nothing but the truth, so help you, God? Mr. Hawley. I do. Chairman Akaka. Thank you. Although statements are limited to 5 minutes, I want both our witnesses to know that their entire statements will be included in the record. Mr. Hawley, please proceed with your statement. TESTIMONY OF KIP HAWLEY,\2\ ASSISTANT SECRETARY/ADMINISTRATOR, TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF HOMELAND SECURITY Mr. Hawley. Thank you very much. Good afternoon, Mr. Chairman, Senator Voinovich, Senator Collins, and Members of the Subcommittee. I have submitted testimony for the record, but since time is short, I would like to get right to the point. --------------------------------------------------------------------------- \2\ The prepared statement of Mr. Hawley appears in the appendix on page 35. --------------------------------------------------------------------------- This issue has been around for a while in the human capital scenario, and feelings run very deep. But the commitment to the mission that TSA has I think is one that we all agree on, and I know our outstanding workforce of TSOs, whatever their opinions on this personally, we are all united on the importance of the mission. And one of the gratifying things of this current debate is the widespread recognition of the Transportation Security Officer as a critical piece of our security. And so I respect the opinions and I respect those who offer them that think collective bargaining is the way we should go. But I have to say that there will be a serious negative security impact if the labor provision adopted by the Committee or the alternative pending amendment become law. Both proposals would dismantle the innovative human capital authorities given to TSA by Congress after September 11 and replace it with a pre-September 11 personnel system that is unsuited to TSA's real-time security mission. While the human capital issues are significant, the security issues are urgent and must be addressed first. TSA operates in a real-time, high-intensity environment where seconds matter and the stakes could not be higher. We count on our TSOs, among other things, to deter and stop an attack that may be in preparation or in progress. Our people face these scenarios at over 400 airports across the Nation every day. In this world, the so-called dots referred to by the 9/11 Commission are not obvious, and connecting them in time is not assured. When the safety of the public is on the line, taking an old solution and putting a new cover on it and then making it law without full examination can have alarming, unintended consequences in the real world. That is the case with these provisions and why I must speak out clearly about the uncomfortable reality of increased risk brought on by them. As Senator Warner mentioned, I briefed Senators last week on classified specifics of these concerns. In a bill that uses the name of the 9/11 Commission, security must come first. It does come first at TSA, and all of the improvements we have implemented in the last 18 months is an additional measure that has been instituted at TSA. I have put up a chart that indicates each one of those highlighted items.\1\ These improvements have been implemented for our workforce, and they acknowledge the capability we already have in our TSOs, and seek to prepare and engage them as security professionals. --------------------------------------------------------------------------- \1\ The chart referred to appears in the Appendix on page 96. --------------------------------------------------------------------------- As has been mentioned earlier, TSOs reported for work on August 10 and, without prior notice, trained for and implemented the most extensive security changes rolled out since September 11. And TSOs did it in real time, literally live on TV. The only way that could happen was that that is something that we practice every day at TSA, the ability to move fast, to make changes on the fly, and it was because of that preparation that we were able to move as fast as that. Proponents of collective bargaining for TSOs point out that any labor agreement would include provisions for emergencies. But it is not just about emergencies. It is about what they do every day. TSA's mission requires that its officers be proactive, that TSOs constantly change what they do and where they do it. They are required to flex to different places in the airport to meet suddenly changing security and operating needs. A system that sets up outside arbitrators to review these constant changes after the fact, without the benefit of classified information that explains the rationale, sets up a morass of wasted time that detracts from the focus on security. Today, if a TSO is not making the grade, that individual can be taken off the checkpoint immediately. Under collective bargaining, that person could be screening passengers for months before the process finally runs its course.\1\ --------------------------------------------------------------------------- \1\ The chart referred to appears in the Appendix on page 99. --------------------------------------------------------------------------- TSOs are tested frequently in the bomb detection skills, and those who do better get paid better. We all know that incentives drive performance. It does not make sense to drop that from a system and then get in place of it one that carves out front-line TSOs and eliminates their incentive to excel. How does it benefit passenger security to make the TSO not accountable for the security outcome? We all wish September 11 never happened. We all wish the threat of terror would go away. But September 11 happened, and we know it did not start in 2001, and it will not end in our lifetimes. And that is the uncomfortable truth. We know of terrorist interest in attacking the U.S. aviation system. We know of attack planning. We know of attack training, and we know of terrorist movement, including in our direction. That is the uncomfortable truth. Taking our TSOs who today flex and adjust to meet real-time needs and force fitting them into an old system would have far-reaching, negative security consequences. Going backwards to a system that adds bargaining, barriers, and bureaucracy to an agency on whom travelers depend for their security can be characterized as many things, but it does not improve security. And that is the uncomfortable truth. I thank the Subcommittee, and I would be happy to answer questions. Chairman Akaka. Thank you very much, Mr. Hawley, for your statement. Mr. Hawley, the National Labor Relations Board ruled in June that private companies which provide screener services at our Nation's airports can organize and bargaining collectively with their employer. Can you share with us what airports utilize private screeners? Mr. Hawley. Sure. Chairman Akaka. And how many of these airports employ a screener workforce that engages in collective bargaining? Mr. Hawley. Well, the TSA contract is with a provider, and then what the provider's arrangements are with their underlying employees is a matter for them to manage. And we have performance specifications. San Francisco is the largest where there is a unionized workforce, but our relationship is with Covenant, and we give them the requirements of things that they must perform to. And it does present a bit of a disconnect to not have the ability to flex and flow them across, for instance, to Oakland or down to San Jose. Chairman Akaka. In his written testimony, Mr. Hawley, Mr. Gage mentions the collective bargaining agreement between the Fraternal Order of Police and the U.S. Capitol Police. This agreement took effect a year and a half after September 11, 2001. The agreement states that the chief of police determines if there is an emergency, and then he or she can suspend provisions of the agreement as needed to respond to the emergency. What are the differences between the Capitol Police, which protects Members of Congress, their staff, and visitors, and TSOs? Why wouldn't such an agreement work for TSA? Mr. Hawley. Sir, the job is very different, and the job of a TSO is one where you do not know whether you have an emergency until it is over. And in the aviation business, that is too late. I will give you an example. Suppose you have two buses pull up outside the terminal and 400 people come off and come to your checkpoint. Is that just a traffic jam? Or are those several hundred people coming there to rush your checkpoint? And you just do not know until you flex to find out the answer to that and process it. And the 9/ 11 Commission report is all about connecting the dots, and you have to be able to flex and change up your look and be able to move to different places based on an adaptive enemy. And it is a very different thing to measure in an emergency like August 10 versus every day something happens where you do not know if it is an emergency. And if you do not treat it seriously and it turns up to be an attack instead of a lot of people showing up at the same time, that is not doing our job. And so it would not work, that arrangement would not work for TSA. Chairman Akaka. In a sense, the Capitol Police makes similar decisions, and so for that reason, at this point I am not seeing the distinction. Mr. Hawley. Well, there are 400 airports, and we operate virtually around the clock around the country. And it is a system that we protect, a network that we protect, and we have to be able to--we cannot just take one area and patrol one defined area like the Capitol and perform the important security needs there. This is a dynamic network that we are charged to protect against an enemy who can attack it from limitless places. Chairman Akaka. Mr. Hawley, I would like to clarify the issue of veterans' preference for TSOs. Mr. Hawley. Good. Chairman Akaka. The ATSA only requires preference for veterans who are retired as opposed to the requirements for other Federal agencies that cover individuals honorably discharged from active duty. It is my understanding, however, that as a matter of policy, TSA gives preference to both groups. Your chart states that veterans' preference is guaranteed and that veterans constitute 26 percent of the TSO workforce. However, AFGE disputes those claims. Can you tell me what percentage of TSOs are retired from the military versus those who are honorably discharged and how veterans are able to enforce their rights? Mr. Hawley. Sure. Well, it is the whole discussion of the appeals process that we have, which is another entire discussion. But our veterans' preference is at least equal and I believe broader in the sense of the retired folks that get veterans' preference on hiring, and we have more--our percentage is something like, as you mentioned, 26 percent and I think governmentwide it is 25 percent on veterans. So we have very close working relationships with veterans, and they form a very important part of not only our agency but our supply of new folks coming in. Chairman Akaka. Mr. Hawley, you mentioned the United Kingdom air bombing plot and how as a result TSA changed the nature of the screeners' work. I understand that airport screeners around the world, including those in the U.K., have collective bargaining rights. If U.K. airport screeners can bargain, why not TSOs in the United States? Mr. Hawley. Well, we ask a great deal of our TSOs, frankly, more than any other country. And it is the thinking, judgment, and engagement part where we add additional layers: Behavior observation, bomb appraisal officers; we are now into document verification. We have a lot of the things that you see up here. We ask our guys to do a lot more security judgment, and that is why in the United States I would stand up our response in the United States and what our TSOs did with anybody in the world as to how they can quickly enter into a new security regime. Chairman Akaka. Before I turn to Senator Voinovich, I want to follow up on my first question. You mentioned that screeners at the San Francisco airport can bargain. Can you tell me why it is OK for private screeners to bargain and not TSOs? Mr. Hawley. Well, the relationship that TSA has with the sponsoring company, Covenant--and we hold them to a certain level of detail. We do not have the ability to share with those TSOs some of the things that we are able to share with our others, with our own employees. Chairman Akaka. Senator Voinovich. Senator Voinovich. Thank you, Senator Akaka. As you know, I have been a strong advocate for our people who work in the Federal Government, and I have a chance to talk with them as I travel around the country, especially in Cleveland. I would like to know from you how have you used your existing flexibilities under the current law to respond to the concerns and needs of the people who work in TSA. Mr. Hawley. Yes, sir. Those are critical to our success, and we use our--we have a pay-for-performance system that we have rolled out that operates, that is fully funded, fully participated in by our TSOs. That comes because we have the ability through these authorities. We also have the ability with part-time workers to extend full-time benefits to part- time workers based on those authorities. So those are two critical pieces of our tool kit that we use now that would be taken away. Senator Voinovich. How about adverse actions and people who are unhappy with the way they are being treated? What options do they have? Mr. Hawley. They have the full gamut. We have an agreement with the Office of Special Counsel on the whistleblower side, and we have a parallel system to the Merit Systems Protection Board, as well as Ombudsman and the whole--we have four or five different routes. And it is one of the issues that, as you know, we have had discussions about--as something that may be worth discussing more legislative remedies in that area, which we are happy to pursue. Senator Voinovich. Last week, my staff met with a group of screeners who believe the decline in EEOC and OSC and injury claims has occurred not because of improvements in the working conditions but because of fear that they will be fired. How would you respond to such concerns? Mr. Hawley. Well, there are protections in place, and I would urge anybody anywhere at TSA who has a concern like that to either go through the Ombudsman or go through some of the outside opportunities that there are for investigation of them. I think on the injury side, though, the injury reduction has been remarkable, and I believe it coincides with some of the other things we are talking about in terms of better training, upgrading the job, career progression opportunities, pay-for-performance. All those things give incentives for people to want to work, and as I think you know, we have cut our lost workdays in half in the last year. Senator Voinovich. When was TSA established? Mr. Hawley. November 19, 2002, was the first stand-up date. Senator Voinovich. So it will be 5 years this year? Mr. Hawley. It will be 5 years, yes. Senator Voinovich. Well, it is a major undertaking to stand up an agency, especially with the number of people TSA needed. So the fact of the matter is that you are still working out some kinks in the process. Mr. Hawley. Clearly, and the stand-up was notable for the speed and the size, but I think some of the earlier employee surveys demonstrate these problems. And we did have a high attrition. Our injury rates were too high. In fact, when I came to this Committee for confirmation, it was one of the top issues I mentioned that struck me on coming into the job. And we have a chart over there \1\ with the yellow highlighting indicates these are all initiatives we rolled out to get at those, to put in career progression, to put in pay-for- performance, put in additional training and additional career opportunities. --------------------------------------------------------------------------- \1\ The chart referred to appears in the Appendix on page 96. --------------------------------------------------------------------------- Senator Voinovich. You heard the argument that unionized screeners in San Francisco, the unionized Border Patrol that has not been a problem. One thing that I think has got to be clear is that you do have people in TSA that belong to a union. Mr. Hawley. They are contractors, and one of the---- Senator Voinovich. I am talking about people that work for TSA. Mr. Hawley. Oh, yes. I am sorry. You are right, absolutely. Senator Voinovich. People that work for TSA that belong to Mr. Gage's union. Mr. Hawley. Absolutely. TSOs have the opportunity to join a union for representation purposes. Senator Voinovich. Right. And the fact of the matter is that when you belong to the union, you can collective bargain everything but wages. Is that correct? Mr. Hawley. Well, not currently at TSA, but under this proposal, yes. In other words, we do not have collective bargaining. Senator Voinovich. Right. But I am referring to other organizations like the Border Patrol. Mr. Hawley. That is correct. Yes, sir. Senator Voinovich. OK. So they can bargain management rights and so forth, but not wages. Mr. Hawley. That is correct. Senator Voinovich. That is taken care of under separte statute. Mr. Hawley. I believe so, yes. Senator Voinovich. Are there aspects of the personnel system that TSA has put into place for its workforce that would not be possible if TSA's authority under Section 111(d) of the Transportation Act was eliminated? Mr. Hawley. Well, I think we mentioned a couple of them, with the pay-for-performance that is out there and the experience that the Department has had, has struggled for 4 years trying to roll out a pay-for-performance, and that has been blocked at every turn. We are the one entity---- Senator Voinovich. Have you done any employee surveys to gauge how people are responding to the pay-for-performance? Mr. Hawley. Yes. I think we have seen our--our attrition is one area that has dropped. We started out with a retention bonus program that came out over the summer and fall, and we just put out--about $52 million of the 2006 pay-for-performance just went out at the beginning of February. So I think our employees have seen us put our money where our mouth is, and for the first time, there are permanent pay raises that happen at TSA when you excel in your job. And that is a critical piece for us moving forward, is to incent our folks so that they are leaning forward and looking for threat objects versus, just---- Senator Voinovich. Do employees get the regular across-the- board salary adjustment? Mr. Hawley. Yes, they get the same--that is a separate program. Senator Voinovich. Then when the Federal Government receives an across the board pay increase TSA employees do also. On top of that they can receive an additional raise based on performance. Mr. Hawley. Exactly. And I should say we also took some of the money for the non-TSOs in last year's pot, and I put it in the TSO pot to give the TSOs more money. Nobody negotiated that. Senator Voinovich. And you think that it is working and that for the most part the employees are happy with it? Mr. Hawley. Absolutely. Senator Voinovich. And you could not do that under the collective bargaining? Mr. Hawley. Correct. Senator Voinovich. My time is up, Senator. Chairman Akaka. Thank you very much, Senator Voinovich. Senator Coburn. Senator Coburn. Let me make sure I understand correctly. If, in fact, what is on the floor today goes through and becomes law, TSO officers will bargain for everything except wages? Mr. Hawley. I think functionally that is about right, yes. Senator Coburn. And so what is driving--what have been the problems that are driving--most of the time, people do not want to--if they perceive--they perceive a lack of either input or loss. Mr. Hawley. Yes. Senator Coburn. What is driving this desire for people to have a union? Mr. Hawley. Well, we have a chart here that we picked out the arguments that we have heard and put them up in the green on the left, and on the right are examples.\1\ So there are a number of issues, and a lot of them are legitimate issues, and they are ones that we are working on. And as I mentioned, on the other chart, these are things we have had the ability in the last year to jump on top of and make changes and implement. And I have a very active Employee Advisory Council that meets with me, and over 90 percent of our employees are covered by these advisory groups. And we are able to move on a dime to make these changes. And I would stand that record of work on our workforce and enhanced capability for our workforce, including permanent pay increases and compensation and training and career, all those things rolled out in a year. And if we had to go through hiring lawyers and our TSOs hiring lawyers and letting them try to negotiate it, that just simply would not happen. --------------------------------------------------------------------------- \1\ The chart referred to appears in the Appendix on page 95. --------------------------------------------------------------------------- Senator Coburn. So other than wages, the projected cost to the TSA if, in fact, this comes into being, have you all calculated what the---- Mr. Hawley. Yes, sir. Senator Coburn [continuing]. Projected cost to the Federal Government, non-wage costs are to the Federal Government? Mr. Hawley. Correct. Senator Coburn. Not on the security issues. Just the costs. Mr. Hawley. No, the cost to set up a process in which we could then engage in collective bargaining we estimate around $160 million. Senator Coburn. So $160 million. Mr. Hawley. Yes, sir. Senator Coburn. From your managers and supervisors, is it your feeling that TSO employees are desirous of collective bargaining? Mr. Hawley. I hear, I have a lot of e-mail, I had a national kind of electronic town hall last week, and there are some who want to give collective bargaining a try, but, frankly, there are a lot that I talk to, particularly out in person or in e-mails I get, that do not. And I think what they are really looking for is performance. They are looking to see whether the leadership of TSA puts forward real career progression, real pay increases, real training--those things. And, in fact, we have and that has resulted in a turnaround, I believe, in our employee attitude. Senator Coburn. So let me see if I can understand this. Union representation for TSO officers will not relate to wages. Mr. Hawley. Correct. Senator Coburn. But will relate to everything else, and everything else in terms of their job is really related to security and flexibility of maintaining security. So we have over here--we are not going to collective bargain for wages. We are going to collectively bargain for all those things that might inhibit us to have the greatest safety that we might need. I do not understand. TSO is out there to protect the American public. This is unlike many others. And I would say to you that the Border Patrol got collective bargaining through the back door, not the front door. It was not anything that we passed that allowed it. It was the court that ruled that. And the fact is that if you talk to the head of the Border Patrol, that at multiple times makes their job much more difficult to protect our borders. So what we have is we are going to be negotiating the flexibility that is required to secure this country on a moment's notice, and we are going to have to have a union representative OK it. And if, in fact, it is only going to be on an emergent basis that you are not going to have to do that, then we are going to spend a lot of time after that. Won't the tendency then be to have a whole lot more emergencies? Mr. Hawley. Well, it would not work for us because we change frequently to change up the look for anybody watching. We also change because the flight schedules of aircraft are different, and we cannot predict day to day what is actually going to happen. It really goes back to the fundamental strategy that the 9/11 Commission talks about, which is the connect-the-dots strategy that you cannot predict. They do not do you the favor of letting you know ahead of time that they are coming. And so you have to be quick on your feet. You have to evaluate each thing that is happening as ``Is this part of something else?'' And then if you want to be--if you are concerned about it, you need to be able to move quickly. And it just does not allow itself--and I respect the thought, but the idea of negotiating when you are at your workstation and when you are not at your workstation--because we do not know if there is a threat some place we have not predicted, like in Cyprus, we have to go there to secure the people flying back to the United States. So limiting that or trying to explain it afterwards just does not work for our business. Senator Coburn. There must be a grain of truth to the problems on whistleblower. You have a Memorandum of Understanding with the Department of Homeland Security that says that TSOs, Transportation Security Officers, have access to whistleblower protection. Well, if that is the case, why is this an issue in this debate? Mr. Hawley. Because it could be changed, I guess, and that having it in legislation would make it an immovable object, so to speak. Senator Coburn. Are you familiar with specific complaints where people have been whistleblowers and have not had protection? Mr. Hawley. I am not, no. Senator Coburn. All right. My time is just about up. Would you discuss again--I was a little bit confused by Senator Akaka's question on veterans. As I read the data, you actually employ more veterans than almost any other agency. Do you seek a preference between retired and non-retired? Mr. Hawley. No. Senator Coburn. So there is no preference that you go one direction or the other? Mr. Hawley. No. Senator Coburn. I will yield back. Chairman Akaka. Thank you very much, Senator Coburn. Senator Collins. Senator Collins. Thank you, Mr. Chairman. Mr. Hawley, Senator McCaskill has introduced an amendment to the Committee-passed bill that is intended to give you more flexibility to deal with emergency situations, which many of us want you to have that kind of flexibility. Her amendment states that the Under Secretary may take whatever actions may be necessary to carry out the agency mission during emergencies, newly imminent threats, or intelligence indicating a newly imminent emergency risk. Why isn't that language adequate? Mr. Hawley. Well, I appreciate the thought and the attempt to address it, but in the world that we operate, every morning we sit in the Counterterrorism Committee and we literally talk amongst all the agencies and intelligence and law enforcement and the military about threats ongoing at that time. And there are at any given point a number of different threat streams that you worry about. And if I could just say I know this one is the one I have really got to worry about and that one is going to be the emergency so, therefore, I am going to make my changes in this airport or that airport, that would make the job a whole lot easier. But it is a bedeviling array of dots out there, and we have the responsibility to make sure that not one of them is allowed to progress and become an attack on the United States. And so we constantly try to move and adjust, and you cannot be sure, until it is too late, that you have had an emergency. You just do not get the advance warning. It is not like a fire erupting or an accident happening, then you know you have an emergency and then you can declare it is an emergency now, folks, you have got to leave your post, because in our business, if it is an emergency, you have had an incident. Senator Collins. I think that her language is an improvement over the Committee bill, but I agree with you that there are some problems in it. Is the word ``newly'' a problem, that it only applies to newly imminent threats? I was surprised that it did not just say that you had the flexibility whenever there was an imminent threat. I do not know why we would want to qualify that to say that it has to be a newly imminent threat. If it is an imminent threat, surely you ought to have the flexibility. Mr. Hawley. Well, this enemy is very patient, and there is planning going on for years. Is that imminent? Is moving around people in advance of an operation, is moving around equipment in advance of an operation, is that a threat? It would tie you up. It would convolute--it convolutes up me, trying to sit there and read through that and try to imagine is it this or that. Trying to define ahead of time how the terrorists are going to attack and then build our security strategy based on that I believe is foolish. That is the whole point of terrorism, is to get around whatever it is that they can figure out you are doing, and that is how they do it. So you do not want to give them a static target. You have to be able, by nature of the job, to keep things moving. So I think trying to define in advance an emergency is not a winning strategy. Senator Collins. Let me turn to a different issue, and that has to do with Rehabilitation Act coverage, which seems to me to be a very reasonable right for the employees to have. I am confused by your chart versus what I hear from some of the employees. Your chart clearly says Rehab Act coverage guaranteed, yet I am told that there is an exemption in the law for the TSOs and that they do not have coverage under the Rehab Act. So explain to me how you can say that Rehab Act coverage is guaranteed given this exemption. Mr. Hawley. Right. The issue is that under ATSA there is a statutory definition of what you have to be to be a TSO, and it says you have to have some physical capabilities, such as the ability to lift, recognize color. There are a variety of things that a TSO has to be physically capable of, and that is written in the law. And so what is covered in the law is exempt, that is, it is different from the Rehabilitation Act. What is not specifically exempted by law is covered by the Rehabilitation Act. So TSA, once you get past the initial ATSA requirements for hiring, does have Rehabilitation Act benefits. Senator Collins. I am not sure that clarifies---- Senator Coburn. So if somebody comes in, if I may, and they are physically fit and they get a back injury---- Mr. Hawley. Correct. Senator Coburn. They were physically fit, so they are entitled to rehabilitation. Mr. Hawley. Yes. Senator Collins. Thank you for that clarification, Dr. Coburn. That truly was helpful. I want to go back to the issue of the Customs and Border Patrol officers. They, too, are performing critical jobs. They, too, are adjusting all the time to new reports, new intelligence, changes in the threats. What is different? You touched on this earlier when Senator Voinovich raised this issue, but how has collective bargaining been a problem for the Customs and Border Patrol agency? Why do you draw a distinction? Mr. Hawley. It is hard to do with one hand, but this is the labor agreements that CBP has to deal with, and we, on the other hand, have the ability to take intelligence, make a decision, and move. And that is sort of the short form of it, but these were pre-September 11 negotiations that happened, and it was a different world, and maybe the jobs were separable to say, yes, you are in this sector or you are in this position, and whoever comes to you, you do whatever it is you do. But the difference is our guys are proactive and move into different jobs, do different things in different places in an unpredictable fashion. Senator Collins. You described an internal process that you have established whereby employees of TSA can appeal adverse actions. But that is not the same as having an independent process outside of the agency, with, arguably, a more independent arbitrator in the Merit Systems Protection Board. Do you object to extending Merit Systems Protection Board protections for appealing adverse actions to the TSOs? Mr. Hawley. No. Senator Collins. Thank you, Mr. Chairman. Mr. Chairman, if you will indulge me for just 30 seconds, I want to explain to our next panelist, Mr. Gage, that I have been called to go to the floor. I am managing the 9/11 bill on the floor. My staff will stay and give me a full report, but Senator Feinstein has come over to offer her amendment, and I need to go debate it. So I am going to leave for the floor. Thank you, Mr. Chairman. Chairman Akaka. Thank you very much, Senator Collins, for your participation here. We will now have a second round of questions. Mr. Hawley, Chapter 71 of Title 5 provides management with explicit rights, including an absolute right to deploy employees and to assign them work. In fact, no agency is required to bargain about work methods generally, and agencies are actually forbidden to bargain about their internal security practices. Moreover, every agency has the authority to fix broad and flexible job descriptions for agency personnel. What flexibility are you lacking under Chapter 71 of Title 5? Mr. Hawley. Well, I would have to go look up Chapter 71, but Gale will tell me if I am wrong in this. But the principal issue we have is that under the authorities we have for TSA, it is wide open. You can figure out what it is you need to do and do it, versus a system where you have to identify in advance what is permissible and identify those things, agree to it, and then move on, and then if you want to change what you previously agreed to, you are going to have to go back and fix it. And that is the problem that we face with--we have back doors at airports. We have air cargo. We have a lot of the issues that come up in other hearings about what are you doing about these various issues around the airport away from the checkpoint. And we use our TSOs in a variety of ways that are not predictable and not something that we could categorize out in advance. And it almost is silly to say the flexibility we need, if you get into restrictions at all, that is where the problem is, because specifically the terrorists go where they know that you are not going to be. So if they know that your agreement says you are going to be here, then they are not going to go there; they will go somewhere else. So our security requires us to be able to keep that changing and a mystery and them not be able to plan around our business. Chairman Akaka. Mr. Hawley, Senator McCaskill has an amendment--and this was mentioned by Senator Collins--to the Senate 9/11 bill that retains the flexibility under Section 111(d), but allows for collective bargaining except for pay purposes. Would Senator McCaskill's amendment allow you to keep TSA's pay-for-performance system? Mr. Hawley. Our understanding is that it would not, and there is good language in Senator McCaskill's amendment, but the net effect of it, when you get right down to it, is that we would lose our personnel authorities that we use for the pay- for-performance and the other items I mentioned. Chairman Akaka. I would like for you to clarify something for me from the earlier line of questioning. When you said that screeners at San Francisco and in London do not have access to the same information as TSOs, you were not implying that these airports were less safe, were you? Mr. Hawley. No, not at all. In fact, I am from there, and I fly out of San Francisco as one of my home airports. It is one of the finest in the world, I might add. Chairman Akaka. Thank you for that. I understand, Mr. Hawley, that TSA has an memorandum of understanding (MOU) with the Office of Special Counsel to investigate whistleblower complaints. As you know, OSC is charged with investigating all prohibited personnel practices, including whistleblowing. Is there any reason why the MOU with OSC is only for whistleblowing and not the other prohibited personnel practices? Mr. Hawley. I have to say I would go back and check with the lawyers on that. But one of the things that Senator Collins has been discussing over the last couple of weeks is aligning all the systems into one and doing away with that ambiguity. So that is something that we could discuss, but at the end of the day it is not something I would say is a security problem that I should address here. Chairman Akaka. Thank you. Mr. Hawley, approximately how many whistleblower cases from TSA employees are investigated by OSC each year? And what action has TSA taken as a result of OSC findings? Mr. Hawley. I am told only one. Chairman Akaka. Thank you. Mr. Hawley, TSA has just made the first payout under PASS, the pay-for-performance system. This Subcommittee held a hearing in September 2006 which focused on serious problems with the Senior Executive Service pay-for-performance system. How are you making meaningful distinctions in performance? Mr. Hawley. Well, I am very proud of that because it is an example of how working with employees--this is really employee participation, and we had thousands of our TSOs involved in the construction of the program, and it is all broken down into technical proficiency, which is about a third of the value, and then another third goes into your skill sets, and then you get into things like attendance and what have you. And there is even a bonus provision for services above and beyond. I have got an advisory council, and in the December meeting they came to me and said this is not enough of a payout to make the statement that you really care about this. And so we turned around and invited the head of our advisory committee and the head of the Assistant Federal Security Director for Screening Advisory Committee, to join me and our senior leadership, and we essentially doubled the payout. And that was in a couple of hours, and it was really because of our commitment to want to demonstrate to the workforce that this was serious, this is real, and it is lasting, and we have been able to accomplish that. Chairman Akaka. Did you invite any union representatives to the initial development efforts? Mr. Hawley. No, sir. Our employees did not have to pay union dues to get that service. We did that as part of our job, and we are on a team, and we did it together. Chairman Akaka. Thank you. Senator Voinovich. Senator Voinovich. First of all, I would like to say that I am very interested in pay-for-performance. I happen to be an advocate for it; in spite of criticisms over the SES system, and I acknowledge--they did have some problems with it, I support it. We have been working with Linda Springer, and I understand from traveling around the State, OPM has made improvements. In addition, I know that Spiral 1.1 for the National Security Personnel System at the Defense Department has worked out well. In fact, I just met with employees at Wright-Patterson Air Force Base to find out how it is working. Mr. Hawley, I want more information about how TSA's personnel system works, I think it is really important. I think people that are getting the job done ought to be rewarded. They should be recognized, and I think that is the way you get them motivated. What I would like to have from you, and I am going to ask the same thing from Mr. Gage, is a list of things that TSA could not do if subject to collective bargaining. I want you to be specific. What would collective bargaining provide employees that they do not have now? Also, what has TSA done to provide employees an independent appeal process for an adverse action and protections for a whistleblower. In addition to that, I want you to check with the head of the Department of Homeland Security, Mike Chertoff. I want to know how the Border Patrol meets its mission while working under collective bargaining agreements. Mr. Hawley. Yes, sir. Senator Voinovich. How many whistleblower complaints have you had? Mr. Hawley. I believe the answer is that is the one that we have. Senator Voinovich. You have had, to your knowledge, one whistleblower complaint since when? Mr. Hawley. Since start-up. Senator Voinovich. In the whole organization? Mr. Hawley. Right. Senator Voinovich. And do you keep track of the number of complaints that you have had from your people over the years in terms of being assigned arbitrarily or taken advantage of or not being treated fairly. Mr. Hawley. Yes. Senator Voinovich. Do we have any of that recorded? Mr. Hawley. Yes, we do. I do not have the chart blown up for you here, but we have got our EEO complaints. We have had a 62-percent drop from 2003, and that is a lower EEO complaint rate than Department of Education, Department of Labor, Department of HUD, U.S. Postal Service, and others. Net-net, it is a fraction, it is a very small piece. The day-to-day issues, we have a model workplace program that we try to get our employees and our management folks talking face to face, and that is clearly the best way to have things go. And I think the overall employee attitude combines all of those things--the workplace environment, whether the environment is safe, whether your boss is a decent person, talking to you individually, whether it is communication, whether you know the mission, whether you are paid well--all those things combined, which is why we have gone after a whole spectrum of issues that come together that make the net workplace a positive place. Senator Voinovich. Another thing that I would like to have from you--and maybe you could work with Mr. Chertoff--is to provide a description of what TSOs and the Border Patrol do. You keep talking about connecting the dots, but what do you mean by ``connecting the dots''? I mean, one of the things that I am thinking about is when dealing with terrorists, if they want to get through our security measures you do not want a pattern of how you do things. They watch the pattern. To keep from operating in a pattern, then you have to move people around, move them to different places, and so forth. For example, at the Cleveland airport I recognize the screener, and the next time I go through the airport, I see them some place else. There are some other things that I would like for you to describe for me. I understand that unions identify the many agencies with collective bargaining agreements, which has not stopped or prvented agencies from doing their work. What I would like to know is, what benefits screeners would have if permitted to bargain that they do not have now. Mr. Hawley. On that one issue--and I did cover this in the classified briefing, but an example would be if we get intel overnight or early in the morning and we want---- Senator Voinovich. Mr. Hawley, just one other thing. Can you move people from one job, say working the gate or the metal detector, to doing another job? Do you have the freedom to move them around to different responsibilities? Mr. Hawley. Totally. They are completely--we move them everywhere. We move them from checked bag, passenger checkpoint, to screen employees in the back, to do document verification. You can progress up and do behavior observation. We move them around all the time, and the problem here is that under collective bargaining we would be subject to arbitrator and complaint that, ``Hey, you moved me for a non- valid reason. I am tired of being asked to do this,'' or ``This does not make sense to me.'' And if we have, as we frequently do, classified reasons for wanting to do it, we are not able to make sense to somebody who is trying to be an arbitrator outside of the government. So that is one thing. Believe me, anything that is a security interest, we are going to move and take care of it. The problem is after the fact going back and trying to convince arbitrators that--at 400 airports that this made sense. It just opens us up to an incredible morass of non-value-add. Do you want me to answer some of the other---- Senator Voinovich. Well, I am out of my time, but if we can take one answer, then--OK? Chairman Akaka. Yes. Senator Voinovich. Yes. Mr. Hawley. Well, the first thing is our TSOs would get a bill for $17 million of dues that they do not have today, and they would lose the ability to negotiate directly, to communicate directly on these issues with management, including personally to me and everybody between me and a front-line TSO. And I think that is absolutely critical for any kind of performance organization, as you know. And connecting that communication to performance and strategy, all those things, we are able to act as one unit across the entire United States. And we can flow people from not only checkpoint to checkpoint, but airport to airport, or support other people off-airport. And that flexibility is a critical piece that depends on people working together and communicating. And to set up a blockage environment where we have to go through and file a process and a notice when we make a performance change is just not going to happen, and then we are subject to the arbitration after the fact. So I have grave concerns at our ability to move and sustain our security strategy. Senator Voinovich. Thank you. Chairman Akaka. Thank you very much, Senator Voinovich. Senator Coburn. Senator Coburn. Thank you. I will be brief, and I will not use all my time because I want our other guest to have time to testify and have questions. I want to try to encapsulate this. If the American public is listening to this testimony today, from what I have heard you say, you are in full emergency mode all the time. That is what protecting air traffic is all about. That is what screening and security at our airports is all about. It is to assume that we are in an emergent situation all the time. Is that correct? Mr. Hawley. That is absolutely correct. Senator Coburn. And so let's say you have new intel that requires you to do something, and you are unionized, and then you have arbitration after the fact. You cannot use, you cannot divulge classified information to someone or the reason why you would do it without disclosing our classified information. Is that correct? Mr. Hawley. That is correct. Senator Coburn. So I am going back to the other point. I saw a reaction to your $17 million quote, but $30 a month times 12 months a year times 41,000 screeners comes real close to $17 million, in my estimation. They are not going to negotiate for wages, but they are going to negotiate everything else that has to do with running security at the airports on an on-emergent basis all the time. Mr. Hawley. Yes, sir. Senator Coburn. I think the case is closed. I will yield back. Chairman Akaka. Thank you very much, Senator Coburn. Mr. Hawley, let me correct something that you said. An employee makes a choice as to whether he or she wishes to join a union. No one pays dues unless the person voluntarily chooses to join a union. When I asked you if you included union representation in developing your pay-for-performance system, you said you did not want employees having to pay union dues. Are there any circumstances in which you believe discussions with unions would be beneficial to TSA and its employees? Mr. Hawley. If we lacked the ability to communicate with our employees, I would say it is something that you would have to look at. But we have employee councils all over the United States at our airports; 91 percent of our workforce in some way is covered with our employee councils. And we already did all this without the need for a union. My point is that, with due respect to unions and the union workers--I mean no disrespect to that. But for our workforce and our ability to move fast and change our mission and stay up with terrorists, we do not have time to set up a process where we go and give notice and find other people and try to convince them and I have got to go hire lawyers to talk to their lawyers. That is a waste of time. We have direct communication with our employees. We have rolled all this out in a year. And I would say to any organization, union or non-union, try to meet that performance. And I would also say for our TSOs, for what they have done over the last year, they have done an outstanding job, and I do not want to break up that relationship that we have that is direct communication, where we are able to move on behalf of the traveling public and address--I think Senator Coburn said it exactly right. This is an emergency, and I put in my statement that we know of terrorist interests in attacking U.S. aviation, we know of attack planning, we know of attack training, and we know of terrorists moving, coming in our direction. And in an unclassified environment, I do not know how to say it any clearer. Chairman Akaka. Mr. Hawley, one of the primary complaints I have heard from TSOs is that Federal Security Directors (FSDs), who are in charge of each airport, have different ways of interpreting and implementing TSA policy directives. As a result, TSOs are not treated consistently from airport to airport. Do FSDs have the authority to change personnel policies or standard operating procedures from those issued by TSA? Mr. Hawley. That is one of the great strengths of TSA, is that we have strong FSDs. As you know, all over the United States and in communities of vastly different characteristics, we have TSA checkpoints. So we have to have a fair process, but one that has the flexibility. And we now go to local hiring where our TSOs get to actually engage with people who are thinking of coming on board TSA as opposed to getting one national agreement that hires kind of a manufacturing process whether they fit or not. We have local hiring, we have local authority, we have all of the ability to move and flex to meet the local standards. And I am sort of caught between because if we have a union, we have one agreement for the whole United States, that just does not work for our varied workforces. And if we have 400 unions, how the heck are we going to have a unified security system? So I think that the system we have now is a real plus to have the FSDs have that flexibility. Chairman Akaka. Mr. Hawley, TSA has an internal board called the Disciplinary Review Board (DRB), to adjudicate employee appeals of adverse actions. Approximately how many cases per year are filed? And how many are found in favor of the employees? Mr. Hawley. I do not know, but we would be happy to provide it for the record. Chairman Akaka. Would you please do that? Mr. Hawley. Certainly. Chairman Akaka. And who sits on the DRB? How are members selected? And what training do they receive? Mr. Hawley. They do have training, and I will have to get you the full list. I do not, because I am part of the appeal process. And we have a principle of trying to get as much peer review as possible, and, in fact, at several of our airports, a TSO who is subject to a disciplinary proceeding can, in fact, pick the people who will sit on his or her review board. So it is a peer review of TSOs by TSOs, and I think that is a very progressive way to go, and that is the direction I would like to take the organization. Chairman Akaka. Senator Voinovich, do you have questions? Senator Voinovich. I have no further questions, no. Chairman Akaka. Senator Coburn, do you have questions for the next panel? Senator Coburn. Yes. Chairman Akaka. Well, with that let me insert my other questions into the record. I want to thank you again, Mr. Hawley, very much for your testimony and responses to our questions. As you know air transportation is very critical to Hawaii because of the tourism industry and its geographic location so it is important for TSA to be working well. I thank you for your statement today, and I look forward to continuing to work with you. Thank you very much. Mr. Hawley. Thank you, Mr. Chairman. Chairman Akaka. I would like to ask the second panelist, John Gage, to come forward. Mr. Gage is the National President of the American Federation of Government Employees who has been active in seeking increased employee protections for TSA screeners. As you know, it is the custom of the Subcommittee to swear in all witnesses. Please stand and raise your right hand. Do you swear that the testimony you are about to give this Subcommittee is the truth, the whole truth, and nothing but the truth, so help you, God? Mr. Gage. Yes, Senator, I do. Senator Akaka. Mr. Gage, please proceed with your statement. TESTIMONY OF JOHN GAGE,\1\ NATIONAL PRESIDENT, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES Mr. Gage. Yes, thank you, Mr. Chairman, Senator Voinovich, and Members of the Subcommittee, for the opportunity to testify. I am accompanied by two TSOs from Cleveland Hopkins Airport: Joe Gattarello from Lakewood, and Karen Budnik, lives in Grafton, Ohio. They have been AFGE supporters since the inception of TSA. --------------------------------------------------------------------------- \1\ The prepared statement of Mr. Gage appears in the appendix on page 83. --------------------------------------------------------------------------- I am proud to say that AFGE has been aggressively fighting for the civil service and collective bargaining rights of TSOs since the debate creating TSA began in 2001. At the request of TSOs, we filed our first representational petition at BWI in November 2002. A few months later, James Loy, announced that the agency would not permit collective bargaining, prompting us to file suit in U.S. District Court. Citing the obscure footnote in ATSA which granted the Under Secretary unfettered discretion in setting the terms and conditions of employment, the case was dismissed. Nevertheless, AFGE responded to TSO complaints and has tried to represent them through the very limited venues available, such as the TSA Disciplinary Review Board, the Office of Workers' Compensation, and the EEOC. But these are not meaningful alternatives to a fair grievance procedure that these American workers deserve. The House passed the 9/11 Commission recommendations with the provision that would grant TSO their fundamental and long overdue rights. Tomorrow, as you know, the Senate is expected to vote on this matter, and I hope that it will put an abrupt stop to this unwarranted abrogation of workers' rights. I want to thank Senator Lieberman and Senator McCaskill, both stalwart defenders of our national security, for their leadership on this matter. The most insupportable inequity for TSOs is the denial of the right to engage in collective bargaining. Mr. Hawley says that TSOs are free to join unions, but a meaningful right to organize and belong to a union includes the right to union representation before management. Because TSA has no legal obligation to even talk to employee representatives, much less engage in collective bargaining, the TSO's right to union representation is non-existent. It is only through collective bargaining that management has a legal obligation to listen to employee concerns and work through issues collaboratively. The range of issues over which TSOs seek to bargain is routine. The issues include the following: A fair promotion system, availability of flex time, overtime, health and safety improvements, parking, child care, and public transportation subsidies. Anyone who works for a living and anyone who has struggled to balance work and family responsibilities knows that these are the everyday items that can make all the difference in reaching that balance. And when these real day- to-day issues are resolved, the result is a strong loyal workforce. TSOs are just like any other workers. They need workplace stability, and they want to be treated fairly. And the fact that they clamor for union representation and collective bargaining demonstrates quite clearly that they are not receiving either in TSA's current human resource system. They do not want to continue to suffer the shameful reprisals of agency management as doomed individuals. They do not want to continue to work in an atmosphere of coercion and intimidation. The employees' experience of managerial inconsistency and arbitrariness has brought them by the thousands to the conclusion that they need a voice at work, with the structure and protection of a legal collective bargaining system. And, yes, they want a contract so that supervisors no longer make it up as they go along, engage in favoritism, arbitrary decisionmaking, and a stubborn unilateralism that wreaks havoc with their lives. What they want and deserve is as American as apple pie. What they want is to be treated with respect and dignity, and TSOs recognize that collective bargaining is the best means to bring dignity, consistency, and fairness to the workplace. They are not asking for rights that go beyond those currently granted to Federal employees, and despite the apparent misconception of 34 U.S. Senators, they are not asking for the right to strike. Let's look at some facts, and I want to bring up what Senator Akaka did, this Capitol Hill Police contract. It is very interesting. Opponents of collective bargaining rights for TSOs invoked September 11, 2001, as if the lesson of that terrible day were to deprive Americans of their rights at work. Thousands of Federal employees and other unionized public employees are engaged in critical law enforcement and national security work, and they bargained contracts with their agency managements both before and after September 11. The collective bargaining agreement between the U.S. Capitol Police and the Fraternal Order of Police is a case in point. These are the very men and women who keep our lawmakers, staff, and visitors safe from terrorism in the District of Columbia. That contract includes language which reiterates current law and regulation regarding the right of managers to act not only in the context of emergency but security-related positions and even staffing shortages. There is nothing in this language to which AFGE would object. The exigency language eliminates entirely the arguments advanced by those who claim that such rights would undermine management's ability to act, especially to act to prevent a crisis. Despite the heightened concerns about security and union representation, the 2003 contract negotiated by the Capitol Police is quite similar to the standard agreements AFGE has with numerous Executive Branch agencies, including the Border Patrol, other DHS agencies, the Department of Defense, and the Bureau of Prisons. The police officers' contract refers frequently to the provisions of the Federal labor relations statute. And I must say, Senator, that when you talk about the mission of an agency, every agency has a different mission, and you bargain within the context of that mission. This contract on assignment of work, on transfers, on security, on leave, all have provisions in there where management can say that the mission--or there is something going on, a situation, and they can simply suspend virtually every article in this contract that comes down to assignment of work. And that is the same type of mission that we would be dealing with when we would bargain a contract with TSA. The subjects bargained are virtually identical. The Capitol Police contract addresses promotion plans, daycare, health and safety, overtime, hours of work, leave, a fair grievance procedure--all things that are standard to a typical AFGE contract. So what is the difference? All the employees in DHS, the Capitol Police, DOD, and elsewhere have these rights. TSOs serve alongside with thousands of other workers whose responsibilities include protecting our homeland, and those other workers are unionized. The 2002 enactment of ATSA that created TSA and federalized the duties of screening passengers and baggage at airports was a prime opportunity to establish a highly trained, well-paid, and fully empowered professional public workforce. TSA management instead created its own personnel system, without the widely accepted protections afforded to most Federal workers. And look at the results: Highest injury rates, illness, and lost time rates in the government. TSOs' overall attrition rate is more than 10 times higher than the 2.2- percent attrition rate for Federal civilian employees and upwards of 40 percent at some major airports. And, of course, by the OPM survey, they have the lowest morale of any employees in the Federal Government. Since the inception of the agency, TSOs have demonstrated their patriotism and their commitment to the work and the safety of the American public. And before September 11 and since, the American labor movement has also demonstrated our patriotism and commitment to our national security because we are the firefighters, the police, the Border Patrol, the emergency medical technicians, and TSOs who protect our homeland every day. We urge the Senate to recognize that because the responsibilities are so similar to those of other public safety officers with full labor rights, TSOs deserve the same civil service and collective bargaining rights. It will help the employees, to be sure, but the benefit to the American people will be enormous. Please, give them their union. Let them build the teamwork and camaraderie necessary to do the job. We will all be safer as a result. Thank you, Senator. Chairman Akaka. Thank you for your statement, Mr. Gage. In his statement to his TSOs on Wednesday, Assistant Secretary Hawley said that collective bargaining would delay changes to standard operating procedures, the introduction and pilot testing of new technology, the ability to introduce additional security functions, and implementation of career path and advancement opportunities. What is your response to Mr. Hawley's statement? Mr. Gage. Senator, there is no basis in fact. When we bargain a contract and we put down some basic rules for employees, this is all in the context of the mission of that agency. There is not the same mission in a VA hospital that there is with the screeners. There is not the same mission in HUD as there is in DOD. Management under the law can exercise their rights according to their idea of the mission of the agency. So to say that screeners might have to be moved from Newark to New York, this could be done on a moment's notice. There is no bargaining obligation when it becomes a mission-critical issue. So when we hear that having a voice at work, having collective bargaining rights is somehow going to affect the national security of this country, I really take offense to it, Senator. It has never happened in 60 years. It has never happened at any of our agencies through world wars, through every calamity that has happened to our country. And to say that now giving rights to these screeners is going to affect national security and using trumped-up reasons, people--I think some of these people have never seen a contract--and the true management rights that the agencies have on each of these critical issues. Chairman Akaka. Mr. Gage, TSA argues that it has instituted programs that drastically cut the number of workers' compensation claims and discrimination claims before the EEOC. In addition, TSA claims morale has improved dramatically. Given the progress TSA has made, why then do you believe it is necessary to change the way TSA's personnel system operates? Mr. Gage. First of all, I do not agree with that, Senator. We have had over 4,000 TSOs contact us with expressions of interest that they want a union and they wanted to join our union. This is only in the last several weeks. Now, when I hear Mr. Hawley say that there has been one we believe complaint--one in an agency of 40,000 people, one in 6 years--that shows to me that people are afraid to come forward. And when you say that EEO complaints have gone down, EEO is probably the only viable forum that employees have. But many of their issues are not really subject to EEO. They should be handled in a fair grievance procedure. So many of the EEO cases that were filed originally by employees just looking for a forum, any forum, went into EEO, were dismissed, were really not discriminatory cases. They are basic cases of fairness and equity in a worksite that should be handled by a grievance procedure. So I do not think there has been the improvement. That is not what I am hearing. I guess this is anybody's opinion. Mr. Hawley can have his, and certainly from the screeners I talk to, I can have mine. Chairman Akaka. Mr. Gage, TSA argues that collective bargaining will impede its ability to move personnel as needed to respond to threats in a timely fashion. You mentioned this earlier, but do you have any further response to that? Mr. Gage. Well, it is just not true, Senator. It is just not true. And we see all these arguments that are coming forward against basic worker rights to have a voice at work. There is no way that this union or any of our TSOs, many of which are veterans, would ever stand up and say, no, we are not going to respond to a management initiative or a management change that was necessary. It is just not in the law. It is not in our contracts. It is not in reality. Chairman Akaka. Mr. Gage, you mentioned that Capitol Police have a flexible bargaining agreement. Mr. Hawley said that TSOs are different from other law enforcement officers. Do you agree with that? Mr. Gage. Yes, I do. They are all different. Our DOD is different than law enforcement, our Bureau of Prisons, our ICE officers. And it is very interesting that we are going to the table in 2 weeks on ICE and on CIS. But you have to take--and that is what bargaining is. You have to accept the mission of the agency and bargain within the context of that mission. So, yes, many of our contracts, in fact, are different because the missions of the agencies are not as restrictive as they would be, for instance, in national security. But employees still can be afforded a collective bargaining right, and they can still bargain a fair grievance procedure, merit promotion issues, health and safety, without coming anywhere close to impeding the mission of this important agency. Chairman Akaka. Mr. Gage, Mr. Hawley said that TSOs are satisfied with the TSA pay-for-performance system. Do you agree with that assertion? Mr. Gage. I think that is probably the biggest issue of concern for TSOs. They do not know how it works. They do not think it is fair. They do not believe in it. It is not a motivator. And despite what Senator Voinovich thinks about the pay-for-performance, I think this system needs a heck of a lot more employee input. Chairman Akaka. TSA claims that administrative costs for allowing collective bargaining for TSOs would at a minimum be $160 million in order to hire labor relations specialists and negotiators and train employees and management on these issues. TSA further claims that amount would be equal to removing 3,500 front-line screeners and cause enormous passenger delays. What is your response to this claim? Mr. Gage. I just do not know what to say about that, Senator, that it would cost that much money. At other agencies it certainly does not cost that much money to bargain a contract. At some agencies we do it in a couple weeks. It is just incredible that anybody would say that it is going to cost this agency $160 million to bargain a labor agreement. Chairman Akaka. Thank you. Senator Voinovich. Senator Voinovich. Thank you, Mr. Chairman. We respectfully have a different of opinion on pay-for-performance. Mr. Gage. Yes, we do. Senator Voinovich. And I am going to be very interested to do some further work and surveying of the people in TSA to find out how they feel about it. I think that it has a good way of motivating people to do a better job and reward those that are working harder. Obviously, if this provision passes, the collective bargaining--or not the collective bargaining but the pay-for- performance would go out the window. Mr. Gage. Why? Senator Voinovich. Well, I mean, you do not like pay-for- performance. You have pretty well said that you do not like it. Mr. Gage. Senator, management has the right to set the performance evaluation system, the tiers of it, and how it is going to be used. We can bargain some fairness and equity issues, but that is not true to say pay-for-performance would go down the tubes if we had collective bargaining. It is simply not true. Senator Voinovich. Do you have pay-for-performance any other place where you represent workers? Mr. Gage. Probably. But pay-for-performance is really a new thing that has come in only in the last few years. We are going to be bargaining, see what they have to say in ICE and CIS and the other places in the Department. DOD, we stand ready--even though we are challenging the labor relations part of it in court, they are moving forward with the pay-for-performance, and we will stand ready to go to the table with it on that. But there is nothing to say that collective bargaining, I can go in there and say, no, we are not going to have pay-for- performance. Our rights do not go that far, Senator. Senator Voinovich. Well, I can just tell you that the position that your union is taking has been against pay-for- performance. Mr. Gage. That is true. It has. Senator Voinovich. And I just want to make it clear that the dues are $30 a month. Is that right? Mr. Gage. No. Each of our locals sets its dues, and right now I believe the screeners--this is not even dues. They are paying us off a bank allotment. This is not dues check-off that we have in a unionized shop or a unionized--where we have recognition. They are just contributing money to our fight for their rights off a bank allotment, and it is $7.50 a pay that the supporters of AFGE are contributing. Senator Voinovich. This is in Cleveland that they pay $7.50. Is that right? Mr. Gage. Correct, yes. And that money is not being used for other union activities. That money is being segregated outside even of our constitution, only to wage the fight for screener rights. Senator Voinovich. Well, the thing that I would like to have is the same question that I asked of Mr. Hawley. What would collective bargaining give workers at TSA across the country that they do not have right now? Mr. Gage. I think that we would--first of all, when they think there is a fair process, a grievance procedure, I think that really has people--gives them a little more hope and a little more faith and a little more security. But if you look at our contracts, Senator, and what we go on, our health and safety, where we would have a committee of employees and we would address health and safety issues, our merit promotion is very important. Senator Voinovich. Are you saying that health and safety-- one of the things that I was impressed with that Mr. Hawley presented was this chart right here,\1\ including days absent from work due to injury decreases due to nurse case management, from 45 days to 20.5 case. Wouldn't you say that this is an effort by the agency to try and be responsible and try to work to make it better. --------------------------------------------------------------------------- \1\ The chart referred to appears in the Appendix on page 98. --------------------------------------------------------------------------- Mr. Gage. I certainly hope so. Senator Voinovich. The other thing that he showed was TSO voluntary attrition rate versus Border Patrol agents and private sector. Mr. Gage. I do not agree with that statistic. I do not know what ``voluntary'' means there. And I know we just checked with our Border Patrol, and there is a 5-percent attrition rate at our Border Patrol. Senator Voinovich. I would like you to take these statistics and get back to me to show how it is different. There is too much disagreement on the private sector data and sources, 29 percent for transportation warehousing; utilities, 24 percent; the Border Patrol agents full-time, 21.2 percent; Federal Government, 17 percent. TSA claim that full-time TSOs are 12.6 percent. Now, they have part-time workers. But I would like to see what your information is. Mr. Gage. Yes, sir. Senator Voinovich. Do you agree with Mr. Hawley that there is a difference between the Border Patrol and the TSOs? Mr. Gage. Yes, sir. Senator Voinovich. And any argument you would negotiate would be different because of the different environment. Mr. Gage. Of course. We negotiate differently than Social Security, Border Patrol, VA, across the board. Each of these agencies has their own critical missions, and you have to bargain within the context of it. Senator Voinovich. So you do agree that they are in a different kind of environment than the Border Patrol or other divisions of DHS? Mr. Gage. Yes. I would not go to evaluate the level of national security that each of these very valuable workforces maintain. I do not know---- Senator Voinovich. How about jurisdiction? That is another one I am interested in. Mr. Gage. Jurisdiction? Senator Voinovich. Jurisdiction being where I work. I am a screener, and under a collective bargaining agreement would mean that you would negotiate to keep individuals assigned to one task or function of a TSOs current job responsibility? Mr. Gage. Senator, that is so routine in just about every agency, especially these days of staff shortages. I mean, our people are very versatile. Of course, they do more than one job. Our people expect it in virtually every agency, or different parts of a job, and that is clearly--if anyone thinks that they would have to come to the union before they put a TSO on the exit lane or on the x-ray--it just would not happen. Senator Voinovich. But do you have the ability to require certain jurisdiction, the job function? Mr. Gage. No, Senator. It really is a fabrication. None of our agencies have a job classification that would prohibit management from assigning you on a day-to-day basis or any other basis to a job that needed to be done. Senator Voinovich. How about emergency situations and negotiations after the fact or challenging whether it is an emergency? Mr. Gage. No, that is not true either. Management has the right even on issues less than emergencies if it is something critical. But let's say someone really does get screwed in a deployment of people. I think to come back and talk about it after the fact and if you can make that person whole, what is wrong with that? That is what American workers deserve. Senator Voinovich. Do you know what the experience is with the Border Patrol? Mr. Gage. The Border Patrol is very good. We have had them for 40 years, and I do not think we have ever had a situation where people said, ``No, I am not going, and my union contract says I do not have to go.'' There are deployments that are done routinely in all of these agencies in DHS, as well as DOD. And I cannot think of any and I know there are not any where a union contract has stopped a deployment when an agency says it is a mission issue and we have to do it. Senator Voinovich. And there are not that many instances of arbitration after the fact? Mr. Gage. There really are not. If I sat here long enough, I probably could think of a couple, but none jump to my mind. The relationships that we try to have with agencies is one that we want this agency to be successful. We do not want to be tangling with them and putting them in the news and everything. We want them to be successful, and we want the workers to have a fair shot, though, and to be treated fairly. So it is not like we are going in there and going to try to throw nuts and bolts into the operation of this agency. We understand how critical it is. Senator Voinovich. Thank you. Chairman Akaka. Senator Coburn. Senator Coburn. Yes, sir. Mr. Gage, thank you for coming before us today. Mr. Gage. Thank you, sir. Senator Coburn. Tell me what ``stubborn unilateralism'' is. Mr. Gage. Well, I think that when you see--you are going to training, I am retiring next--I saw this at DHS, and I will just use it. I have not seen this in this particular thing. But there was a guy who was down in Dallas, and he says, ``John, they are sending me to training on the customs side of the house. It is a 13-week training. I am retiring in 4 weeks. I am trying to train the guy who is replacing me, and I cannot get it across to management that this is really a stupid thing to do.'' Senator Coburn. I know, but we are not talking about them. We are talking about TSA. Mr. Gage. Well, we do not represent them. Senator Coburn. But where is the stubborn unilateralism that you referred to in TSA? Those are your words. I am giving you your words back. Mr. Gage. I think those are things that, when we want to--I think the whole framework of this arbitrariness, really, is coming to us in the words of our screeners: ``How does the pay work? Why did I only get this?'' ``Well, we do not have to tell you. Bye.'' And it is a ``my way or the highway'' perception that I am trying to get across to you, Senator. Senator Coburn. Have you seen any improvement over the last few years in TSA? Mr. Gage. Yes, sir. Senator Coburn. So they are responding to some of the problems that they have been faced with starting in 2002. Mr. Gage. Well, I hope so. There are about 35, 40 percent-- -- Senator Coburn. I am not sure anybody in this country could have set up that kind of organization in a short period of time without a great deal of difficulty. Mr. Gage. That is true. Senator Coburn. The fact is that they have made great improvements. Mr. Gage. Senator---- Senator Coburn. Let me finish. Mr. Gage. Yes, sir. Senator Coburn. This chart is based on G-5 to G-7 rankings,\1\ and it is accurate for the Border Patrol, G-5 through G-7. That is the reference. So from G-5 to G-7, TSA actually has less attrition rate than the Border Patrol does. --------------------------------------------------------------------------- \1\ The chart referred to appears in the Appendix on page 97. --------------------------------------------------------------------------- Now, granted, that is entry level. I understand that. But the point is that says they are now making good improvement on the people that are coming in for training and keeping them. The fact is that the Federal Government has the lowest attrition rate of anybody in the world. We have the best benefit packages. The benefit packages in the Federal Government beat anything inside Oklahoma. You cannot get a job with the kind of benefit packages that the Federal Government has. That is wonderful. We should have the best paid and the best benefit packages. But to say that they have not improved, they have made marked improvements in all the areas of concern. And the fact is that it will be interesting to hear if you can bring to me other whistleblower actions that have been made other than the one that they talked about, because I am surprised that there is only one. Mr. Gage. I am amazed. Senator Coburn. I am, too. So I think that is very important for us to have the right information, because if, in fact, they are improving, it ought to be recognized rather than to say that there is stubborn unilateralism, which are your words that you implied to the TSA. Mr. Gage. Yes. Senator Coburn. The screeners that I talk to in Tulsa and Oklahoma City--and I fly twice a week back and forth either through Chicago or Dallas. I am not seeing that. I am not saying that there is not a large need for improvement there and lots of other places in the Federal Government. As a matter of fact, I am a champion for efficiency and improvement. But to not recognize the marked improvements that have come about through TSA and to not--and I am a big believer, I am with Senator Voinovich: Pay-for-performance works everywhere except where we will not let it work and then we are not as efficient. And the question that we should have on pay-for-performance and that you all raised: Is it fairly administered? Is there confidence in it? It is not whether pay- for-performance works. We know it does. The question is whether it is fairly administered or not? So we should be embracing pay-for-performance, and we should be embracing the fairness under which it is administered. Mr. Gage. Senator, here is my one disagreement with you. Senator Coburn. OK. Mr. Gage. Whether they are improving or not, that does not negate the right of workers to organize and have a voice at work on their terms. Collective bargaining---- Senator Coburn. It does when it concerns the national security and transportation security of this country. And you just heard him say they run that like there is an emergency every day. If we are going to work--I do not want them spending one minute worrying about a shop steward when my wife or my family or Senator Voinovich's family is getting on an airplane. That should be the last thing that anybody in management in TSA should ever even be thinking about. And the point comes that it is not all as simple as you make it, because what happens is that once there is a mission- critical decision and you all have a contract, I guarantee you that tons of time is spent second-guessing it, arbitrating it, and then working on it after the fact. And that occurs every day in the areas that you represent in this Federal Government. Mr. Gage. Senator, these are rights. They should not be taken away lightly. In fact, I think these workers should receive the benefit of the doubt--not because someone--and from what I have heard Mr. Hawley talk about collective bargaining-- he has his job, I have mine. But I do not think you can just say that they have made some improvements---- Senator Coburn. I am not saying that. We are not saying that. Mr. Gage. There is somebody's bogus national security issues---- Senator Coburn. What we are saying is: Whose rights come first? The American public and the right to have the most efficient, most flexible, most secure transportation system in the world---- Mr. Gage. I agree, sir, and that would include collective bargaining. Senator Coburn [continuing]. Or a union who is quoted as saying, ``We have got to gain 40,000 members a year to break even today, but because of the age of our members and pending retirement, that number will go to 50,000. As a matter of fact, the campaign is the perfect opportunity to convince TSA employees to join their union become active as volunteers in our great union.'' Mr. Gage. What is the matter with that? Senator Coburn. The rights of Americans to have a secure, fast, safe, and reliable security system at the airport is the No. 1, right. Mr. Gage. Correct. Senator Coburn. And that is not exclusive and does not exclude the right of the valuable TSO officers we have today. But it does not mean that those rights should ever come in front of the others. Mr. Gage. I agree with you, Senator. I think they can operate very well together: Collective bargaining rights for the workers, and that agency performing excellently its national security obligations. I do not see these as the point- counterpoint that you do, Senator. Senator Coburn. Well, I do. I will yield back. Chairman Akaka. Thank you very much, Senator Coburn. I want to thank you again, Mr. Gage, and also Assistant Secretary Hawley, for being with us today to provide additional information on the proposal to provide TSOs with employee rights and protections. I am confident that today's hearing will contribute to the current Senate debate over the personnel system for TSA screeners. I ask at this point unanimous consent that an editorial in today's Washington Post on TSA collective bargaining be included in the record.\1\ --------------------------------------------------------------------------- \1\ The article appears in the Appendix on page 111. --------------------------------------------------------------------------- I want to thank you again and thank the Members who were here. The hearing record will be open for one week for additional statements or questions other Members may have. With that, the hearing is adjourned. 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