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[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:20171.wais]
S. Hrg. 109-41
UNLOCKING THE POTENTIAL WITHIN HOMELAND SECURITY: THE NEW HUMAN
RESOURCES 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 NINTH CONGRESS
FIRST SESSION
__________
FEBRUARY 10, 2005
__________
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
SUSAN M. COLLINS, Maine, Chairman
TED STEVENS, Alaska JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio CARL LEVIN, Michigan
NORM COLEMAN, Minnesota DANIEL K. AKAKA, Hawaii
TOM COBURN, Oklahoma THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia
Michael D. Bopp, Staff Director and Chief Counsel
Joyce A. Rechtschaffen, Minority Staff Director and Counsel
Amy B. Newhouse, Chief Clerk
OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
GEORGE V. VOINOVICH, Ohio, Chairman
TED STEVENS, Alaska DANIEL K. AKAKA, Hawaii
NORM COLEMAN, Minnesota CARL LEVIN, Michigan
TOM COBURN, Oklahoma THOMAS R. CARPER, Delaware
LINCOLN D. CHAFEE, Rhode Island MARK DAYTON, Minnesota
ROBERT F. BENNETT, Utah FRANK LAUTENBERG, New Jersey
PETE V. DOMENICI, New Mexico MARK PRYOR, Arkansas
JOHN W. WARNER, Virginia
Andrew Richardson, Staff Director
Richard J. Kessler, Minority Staff Director
Nanci E. Langley, Minority Deputy Staff Director
Tara E. Baird, Chief Clerk
C O N T E N T S
------
Opening statements:
Page
Senator Voinovich............................................ 1
Senator Akaka................................................ 4
Senator Lautenberg........................................... 6
Senator Pryor................................................ 18
WITNESSES
Thursday, February 10, 2005
Hon. David M. Walker, Comptroller General, U.S. Government
Accountability Office.......................................... 8
Ronald J. James, Chief Human Capital Officer, U.S. Department of
Homeland Security.............................................. 10
Dr. Ronald P. Sanders, Associate Director for Strategic Human
Resources Policy, U.S. Office of Personnel Management.......... 12
Darryl A. Perkinson, National Vice President, Federal Managers
Association.................................................... 26
Colleen M. Kelley, President, National Treasury Employees Union.. 28
John Gage, National President, American Federation of Government
Employees...................................................... 30
Richard N. Brown, President, National Federation of Federal
Employees...................................................... 32
Kim Mann, on behalf of the National Association of Agriculture
Employees...................................................... 34
Alphabetical List of Witnesses
Brown, Richard N.:
Testimony.................................................... 32
Prepared statement........................................... 142
Gage, John:
Testimony.................................................... 30
Prepared statement........................................... 122
James, Ronald J.:
Testimony.................................................... 10
Prepared statement........................................... 74
Kelley, Colleen M.:
Testimony.................................................... 28
Prepared statement........................................... 110
Mann, Kim:
Testimony.................................................... 34
Prepared statement........................................... 152
Perkinson, Darryl A.:
Testimony.................................................... 26
Prepared statement........................................... 94
Sanders, Dr. Ronald P.:
Testimony.................................................... 12
Prepared statement........................................... 80
Walker, Hon. David M.:
Testimony.................................................... 8
Prepared statement........................................... 45
Appendix
Copy of Section 2301 of Title 5 submitted by Senator Akaka....... 43
Neil A.G. McPhie, Chairman, U.S. Merit Systems Protection Board,
prepared statement............................................. 162
Post-hearing comments from United DOD Workers' Coalition......... 165
Questions and responses for the Record from:
Mr. Walker................................................... 303
Mr. James.................................................... 309
Dr. Sanders.................................................. 322
Mr. Perkinson................................................ 332
Ms. Kelley and Richard Brown................................. 335
Mr. Gage..................................................... 342
Mr. Mann..................................................... 346
UNLOCKING THE POTENTIAL WITHIN
HOMELAND SECURITY:
THE NEW HUMAN RESOURCES SYSTEM
----------
THURSDAY, FEBRUARY 10, 2005
U.S. Senate,
Oversight of Government Management, the Federal
Workforce, and the District of Columbia Subcommittee,
of the Committee on Homeland Security and
Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in room
SD-342, Dirksen Senate Office Building, Hon. George V.
Voinovich, Chairman of the Subcommittee, presiding.
Present: Senators Voinovich, Akaka, Lautenberg, and Pryor.
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. The hearing will please come to order. I
want to thank all of you for coming.
Almost 1 year ago on February 25, 2004, this Subcommittee
convened a hearing entitled ``The Key to Homeland Security: The
New Human Resources System.'' The purpose of that hearing was
to consider the Department of Homeland Security's proposed
regulations for their new human resources system.
Today's hearing, ``Unlocking the Potential Within Homeland
Security: The New Human Resources System,'' will consider the
final regulations.
Before we proceed I want to say that I understand there are
many strong feelings about these regulations. However, I would
like to ask those here today to respect the decorum that is
customary in the U.S. Senate. I am asking the audience not to
respond to the witnesses' testimony, the questions Senators
will be asking, or the answers of the witnesses to questions.
I commend the Department of Homeland Security, the Office
of Personnel Management, Department employees, and
representatives of Homeland Security employees for the time
they have invested in developing this new human resources
management system. I personally want to thank former Secretary
of Homeland Security, Tom Ridge, and former Director of the
Office of Personnel Management, Kay Coles James, for their
commitment to this process. I know that they were both engaged
in this personally, and I admire their dedication.
The 2-year process, the development of the regulations has
gone through is a relief to me. Many of us were concerned that
these regulations would be rapidly developed and implemented.
However, that has not been the case. The Homeland Security Act
of 2002 was signed by the President on November 25, 2002.
Proposed regulations were published in the Federal Register on
February 20, 2004. The final regulations, the topic of today's
hearing, were published only 9 days ago on February 1.
It is clear that there has been a very deliberate and
collaborative process, and I thank the Administration for this.
For example, DHS and OPM used the statutory authority to enlist
the assistance of the Federal Mediation and Conciliation
Service to facilitate the dialog with labor organizations and
extended that process beyond the 30-day requirement in law.
It is clear to me when comparing the final regulations to
the proposed regulations that DHS and OPM have made some
significant changes. For example, the new system will establish
a Compensation Committee to gather input from multiple sources,
including employee unions, in determining employee pay. In
addition, the final regulations now allow employee input in
determining members of the Homeland Security Labor Relations
Board.
Another significant change in the final regulations is a
requirement for post-implementation bargaining on management
actions for employees adversely impacted for more than 60 days.
Some of you may recall that I raised the importance of post-
implementation bargaining at the hearing that we had last
February.
These examples represent an increase in union involvement
from the proposed regulations. In addition, some changes like
the Compensation Committee create a role for unions unique to
the Federal Government.
These new regulations represent historic changes to the
Federal civil service. I would like to remind my colleagues of
the enormous changes the legislative proposal authorizing these
regulations underwent in Congress.
My colleagues may remember that the original legislative
proposal offered almost a blanket exemption, a blanket
exemption from Title 5 for the Department, similar to what was
authorized for the Transportation Security Administration.
Many of us were very concerned with this proposal including
my good friend in the House of Representations, Rob Portman. As
a result, the enacted legislation included far less flexibility
than initially sought by the Bush Administration.
I understand that all parties are not satisfied with the
final regulations, and they will have an opportunity today to
explain their concerns to the Subcommittee.
When the Senate was considering the Homeland Security Act,
I suggested to my colleagues that the law allow for binding
arbitration over the six chapters of Title 5 that were waived.
Based on my experience working with employees unions as Mayor
of Cleveland and Governor of Ohio, I thought that the process
would have brought all parties to an agreement on the
regulations more quickly and with less friction.
Having an independent third party make final decisions on
points of contention would have fostered, I believe, additional
collaboration over the regulations and given more credibility
to the process. However, this suggestion was not well received
by my colleagues or the Administration.
So as a part of the largest government reorganization in
half a century we have the new personnel system authorized by
Congress. Regarding this, I have this observation for both the
Administration and union representatives here today: Nothing
less than the security of our Nation is at stake. That is why
we created the Department, to secure the homeland and protect
us from terrorism. We must find a way to work together. The
people of this country no less.
To the Administration I say it is your obligation to
continue to collaborate with the Department's employees and
their unions and to do right by them in this new system. They
must be treated equitably. The merit principles of the civil
service that have served our country so well must be upheld.
Managers must receive excellent training so that they can make
fair judgments regarding employee performance. This point will
be discussed in greater detail by the Controller General.
Employees must receive the training and resources they need to
make the most of his or her God-given talent.
To the union leaders, I say it is your duty to roll up your
sleeves and work with the Department of Homeland Security and
the Office of Personnel Management to make this new system work
well.
It is my hope that the collaboration and dialog the
Department and its employees have engaged in over the past 2
years will continue into the future. I expressed this sentiment
to the President's nominee for the Secretary of Homeland
Security, Judge Chertoff, when I met with him 2 weeks ago. I
suggested to Judge Chertoff that one of the first actions that
he takes is to bring in the representatives of the employee
unions and visit. I encouraged him to initiate a personal
dialog with them so they know that he, too, is very much
concerned about the Department's human resources system.
As I stated a year ago there is no doubt in my mind that
the only way any organization can be successful is to have the
best and brightest minds focused on the important task at hand.
I know the employees of the Department of Homeland Security
are hard-working and dedicated. It is my hope that the new
human resources management system will assist the Department in
fostering a high-performing culture that empowers these
workers, encourages innovation, and supports and rewards them.
It is because of my unwavering commitment to the employees
of the Department of Homeland Security and its mission that I
have called this hearing today. I understand the ramifications
the system will have in the Department itself and the rest of
the Federal service. I am committed to ensuring its success,
and I know the Members of this Subcommittee are committed to
that.
I look forward to hearing the testimony of our witnesses
today and a continued dialog over these important reforms.
I now yield to my good friend, the Senator from Hawaii.
This is the first hearing in which Senator Akaka is my
Subcommittee's Ranking Member. Senator Akaka and I have spent
many years working together on Federal personnel issues. We
have gotten to know each other a lot better through our Bible
study group. I treasure Senator Akaka's friendship, and I
appreciate his leadership and commitment to the human capital
issue. Senator, I look forward to working with you in your new
capacity as Ranking Member of this Subcommittee. Senator Akaka.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Thank you, Mr. Chairman. I am especially
pleased to join you as the Ranking Member of this Subcommittee
and to join you as the leader of human capital issues here in
the Senate. As we all know, you and I have enjoyed a long and
successful partnership, and I look forward to that partnership
continuing in working with you on this Subcommittee.
I also want to welcome our panelists, Comptroller General
Walker, Mr. James, and Dr. Sanders to our hearing this morning.
We certainly are grateful and have appreciated the work of
Secretary Tom Ridge as he developed the Homeland Security
office here in our country. We have much to do and we are
starting to do it.
Our hearing this morning marks the first public forum on
the final personnel rules issued jointly by the Department of
Homeland Security and the Office of Personnel Management. I
know there is strong disagreement over these final regulations.
Many who join us today believe their input was not valued and
their views were not fully addressed.
However, I want to commend DHS and OPM for the
collaborative and open manner in which employee groups and
stakeholders were involved in the development of these
regulations. All agencies should undertake organizational
change in a similar cooperative and inclusive manner.
I, too, participated in the consultation process by
submitting detailed comments on the proposed regulations last
year which discussed the preservation of employee rights and
protections. I am pleased that some of my suggestions were
included in the final regulations, which are an improvement
over those proposed a year ago. The rules retain protections
found in current law that permit judicial review, use of
preponderance of evidence standard for employee appeals,
provide for employee grievances, and govern the awarding of
attorney fees.
However, the regulations fall short of our common goal of
protecting the merit principles on which our country's Federal
civil service have been developed and which serve as a model
throughout the world. The principles of merit and fitness call
for fair and equitable treatment of employees, and protection
from arbitrary action, personal favoritism, and coercion for
political purposes. We must avoid undermining the merit system,
and we do not want to return to the spoils system.
Mr. Chairman, I ask unanimous consent that Section 2301 of
Title 5, which contains the merit systems principles be
included in the hearing record.\1\
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\1\ The copy of Section 2301 of Title 5 appears in the Appendix on
page 43.
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Senator Voinovich. Without objection.
Senator Akaka. Without adhering to this provision of law we
may put at risk the government's ability to attract skilled new
workers and retain experienced employees who have already
chosen Federal service. The intent of allowing the Department
of Homeland Security to implement a new personnel system to
ensure an effective and efficient workforce to meet the
challenges and fulfill the missions of the Department. As such,
it is essential that this and any human resources system be
both fair and perceived as fair in order to be credible. I
believe that DHS regulations fall short of this goal.
The final rules will bring dramatic changes in the way DHS
hires, fires, classifies and pays employees. It will also
seriously diminish collective bargaining rights of employees.
The rules eliminate bargaining for a majority of routine issues
and deny union input on policy implementation.
The creation of an internal Homeland Security Labor
Relations Board and International Mandatory Removal Panel,
coupled with the restrictions on the Merit System's Protection
Board and the Federal Labor Relations Authority to review DHS
cases undermines the effectiveness and credibility of these
procedures. These regulations will curtail employee bargaining
rights and deny opportunities for front-line employees to
provide critical input on departmental programs and directives.
A well-managed organization values employee input, and its
senior managers understand the critical role front-line workers
have in protecting mismanagement. I am concerned that these
changes could be detrimental to carrying out the Department's
programs and directive successfully.
Mr. Chairman, you and I believe that the government's most
important asset is the Federal workforce, whose dedication,
commitment, and courage are demonstrated every day. We should
value the work performed by these men and women, which requires
our unwavering effort to make sure that any government
reorganization is done right the first time. Nor should we
ignore employee morale, which plays a significant role in
maintaining the DHS workforce.
Congress was told that DHS and Department of Defense, which
will release its proposed personnel system next week, needed
``flexible and contemporary'' personnel systems to meet their
national security missions because Title 5 was outdated and
inflexible.
We know from the President's fiscal year 2006 budget
proposal that the Administration wants to let all Federal
agencies use these new regulations to modify existing personnel
systems. It is premature and shortsighted to open the door to
untried and untested regulations for the entire Federal
Government given the lack of employee protection in the DHS
rules. I support modernizing and strengthening civil service
laws which is one reason why I have worked with Senator
Voinovich over the years to enact legislation such as
categorical ranking and compensatory time for travel.
Unfortunately, many agencies fail to use existing flexibilities
and most agencies lack funds to train managers on measuring
performance and disciplining problem employees.
As long as these regulations and the soon-to-be released
DOD rules are seen as a template for civil service reform, we
need to be sure that the concerns expressed today are
addressed. I want to make sure that there is a process by which
employees have a real voice in policy decisions and Agency
missions, and I am ready to work with DHS to: Provide increased
opportunities for employees to bargain over issues such as
scheduling and posting of employees; increase employee input in
Department programs; provide opportunities for meaningful and
independent oversight; and develop fair, credible and
transparent performance criteria, and training programs.
I thank you for the time, Mr. Chairman. I look forward to
hearing from our distinguished panelists, and I thank all of
you for being with us today. Thank you, Mr. Chairman.
Senator Voinovich. Thank you, Senator Akaka.
Senator Lautenberg, thank you very much for being here.
OPENING STATEMENT OF SENATOR LAUTENBERG
Senator Lautenberg. I am delighted to be here with you, Mr.
Chairman. Unfortunately, I have a time commitment that will not
permit me to stay, but I do want to make my opening statement.
I congratulate you for convening this hearing. I want to say
one thing at the start, Mr. Chairman. I have great personal
respect for you. I know that you care about people. You have
done it in your public service as mayor, governor, Senator, and
in private conversations that we have had. I have seen you
evidence concern about what we do with health care and things
of that nature, and I know that you want to be fair with people
and will do whatever you can to make sure that happens.
We are in disagreement I think perhaps on some of the
policy changes that are anticipated here, but I say it with all
due respect to you, Mr. Chairman.
Senator Voinovich. Thank you.
Senator Lautenberg. Despite your admonition that the quorum
had to be preserved. [Laughter.]
Senator Voinovich. Senator Lautenberg, one of the things
that I welcome in your participation on this Committee is your
success in the business community. You are a great leader, and
you appreciate probably as much as anyone how important good
people are to an organization.
Senator Lautenberg. Thank you very much.
In case it was not obvious, I have to say that I was not in
the Senate when Homeland Security Act of 2002 was passed into
law. I think I am in the record as having been the oldest
freshman that ever came to the U.S. Senate. [Laughter.]
If I had been here I would have objected to the personnel
provisions included in the bill which denied the employees of
the Department of Homeland Security the same rights to bargain
and to appeal personnel decisions afforded to other Federal
employees. The notion that collective bargaining rights somehow
threaten national security, that Federal employees who belong
to a union are somehow suspect, I find offensive. Frankly, I am
appalled by the attacks on organized labor.
I have been around long enough to remember a period of time
in America when jobs were so precious, and I remember a story
from my father who worked in the silk mills in Patterson, New
Jersey, when he and a good friend of his stood hat in hand--
they wore hats in those days--waiting for the factory owner to
pass out of his office so that they could appeal the decision
by their foreman that if they took a religious holiday off that
their jobs were terminated. That would have been like a death
knell for my father, and he trembled when he told me this story
about it. The owner was a much kinder man and things went
along.
But we cannot ever forget what it was that created the need
for working people to organize, and when we see working people
in jobs today that are only guaranteed $206 a week, it tells
you that there have to be voices out there that speak to the
needs of people, that $206 a week barely can take care of one
person, and in many cases it is supposed to take care of a
family. So we see that and we are reminded that people need
attention in developing their own strength of voice.
So the first responders I recall who rushed into the
emergency stairwells in the Trade Center on September 11, while
civilians were filing past them on the way down, belonged to
unions. I had an office in that building when I was a member of
the Port Authority of New York and New Jersey before I came to
the Senate, and it was an entire city included in those few
buildings there. But when you saw the heroism and the price
paid by so many people who were union members, it says that it
cannot be a bad thing for people to be able to express
themselves in a collective fashion.
I am a strong believer in protecting the Federal workforce.
I have great respect for people in the Federal workforce, and
though I ran a company the Chairman was kind enough to mention,
a very successful company, today employs 40,000 people, and I
was one of three young kids out of college who started that
company so many years ago. But what I have seen of the public
sector, if I can call it that, compared to the private sector
is that there is no match, that the habits are the same in the
private side. There are not a lot of perfect people around, not
even here in the Senate, surprise to many, but the fact is that
people who are in the Federal workforce are usually committed
to jobs that are not competitive in the pay scales with jobs in
the outside world. And if there was a change, we made it. When
we took the screeners out of the private sector because we
could not get a decent day's work done and never had security,
the knowledge that things were safe, we put them on the Federal
payroll. That was a huge decision. At the same time we are
saying we cannot permit them to have an organized voice.
I am concerned that the plan, as proposed, could be subject
to political manipulation. Doing away with the General Schedule
system which has served Federal employees and the American
people well, probably creates more problems than it solves. The
new system would set wages according to the results of annual
surveys, salary surveys of private sector workers, but private
sector wages vary widely or fluctuate due to market changes.
Given the importance of the DHS mission, we need to attract the
best and the brightest to work here. Beating people down,
taking away their rights to collective bargaining and other
union protections is not going to create the DHS workforce with
the morale that we need to help keep America safe.
Mr. Chairman, I hope that we can work together to fix the
problems with this new plan. I welcome our panels of witnesses,
and apologize for not being able to be here during their
testimony. I would ask that the record be kept open for any
questions that I might submit.
Senator Voinovich. Without objection, Senator Lautenberg.
Senator Lautenberg. Thank you.
Senator Voinovich. If the witnesses would please stand, it
is the custom of this Subcommittee to swear in our witnesses.
Do you swear that the testimony you are about to give is the
truth, the whole truth and nothing but the truth, so help you,
God?
Mr. Walker. I do.
Mr. James. I do.
Dr. Sanders. I do.
Senator Voinovich. Let the record show that the witnesses
answered in the affirmative.
As is the custom with this Subcommittee, I would ask the
witnesses to limit their testimony to 5 minutes. Your complete
written testimony will be printed in the hearing record.
I first would like to welcome David Walker, Comptroller
General of the United States. I have worked often and closely
with Mr. Walker on issues dealing with human capital. I would
like to publicly say that without his help, input, and
collaboration, we would not have been able to make the most
significant changes in the civil service since 1978.
I remember when I first met you we talked about this. I
think we have come a long way since that day. I look forward to
your insight today on the Department's final regulations. Mr.
Walker.
TESTIMONY OF DAVID M. WALKER,\1\ COMPTROLLER GENERAL, U.S.
GOVERNMENT ACCOUNTABILITY OFFICE
Mr. Walker. Thank you, Mr. Chairman, and Senator Akaka. It
is a pleasure to be here and it is a continuing pleasure to
work with both of you in this and other areas of mutual
interest and concern. I appreciate the opportunity to provide
our preliminary observations on the Department of Homeland
Security's final regulations. I might note that it is my
understanding that the Department of Defense may issue their
proposed regulations as soon as this afternoon, and so this is
a momentous day, not only from the standpoint of this important
hearing, the DHS regulations, but also I expect there will be a
lot of interest in whatever the Department of Defense proposes.
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\1\ The prepared statement of Mr. Walker appears in the Appendix on
page 45.
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What I would like to do, Mr. Chairman, if I can, is to
summarize by commenting on three positive aspects, three areas
of concern, and three comments on the way forward, and
obviously make myself available for any questions after the
other co-panelists have a chance to go.
First from a positive standpoint. We believe that the
proposed regulations provide a flexible, contemporary,
performance-oriented and marked-based compensation system at
least with regard to the theoretical framework. Second, we
believe it is important, as the regulations note, to have
continued employee, union, and key stakeholder involvement in
developing the details--and the details do matter, there are a
lot of details that are not addressed here--and also in being
active participants during the implementation phases. That
involvement must be meaningful, not just pro forma. That is
critical in order to achieve credibility and success.
Third, we believe that the regulations are positive in
providing a basis to evaluate the implementation of the
regulations and to involve employee representatives in
designing the evaluation criteria and reviewing the findings of
recommendations that result therefrom. So those are several
positive comments.
Areas of concern. Obviously, one major area of concern,
which is currently subject to litigation, and therefore I won't
get into much detail on it, is the proposed scope of collective
bargaining and whether and to what extent collective bargaining
should be broader than as proposed under the regulations. But
other than that, it is difficult to determine the overall
impact of the changes on potential adverse actions, appeals and
labor relation processes because there are a lot of details
that are yet to be defined.
I think it is very important that they be defined, and how
they are defined can have a significant impact on whether or
not they are likely to be effective and credible. We believe it
is critically important that employees have access to an
independent, qualified and adequately resourced external appeal
body in appropriate circumstances in order to ensure the
consistency, the equity of actions while preventing abuse of
employees.
In addition we are concerned that the performance
management system does not provide a core set of key
competencies that can help to provide reasonable consistency
and clearly communicate to employees what is expected of them,
which competencies hopefully would be validated by the
employees in order to gain acceptance, credibility and minimize
adverse actions.
And last, we are concerned that a pass/fail or three-level
rating scale system that might be implemented would not provide
for meaningful differentiation in performance in order to be
able to make the most informed pay and other human capital
decisions.
As far as moving forward, we think it is critically
important that in order to be successful here, because it is
going to take the combined efforts of a number of key parties
over an extended period of time, that there be committed and
sustained leadership at the top. While we believe that a COO,
Chief Management Officer concept is absolutely essential to the
Department of Defense, we believe it might have merit at the
Department of Homeland Security, not only with regard to human
capital issues but also the overall business process
transformation and integration.
Second, we believe that there has to be an overall
consultation and communication strategy that provides for
meaningful two-way communication, creates shared expectations
among managers, employees and all key stakeholders, and in fact
provides for meaningful and ongoing two-way interaction.
Reasonable people will differ. They obviously do in many cases
here, but it is important that all sides be heard and
considered seriously.
Last, we are very concerned that the necessary
infrastructure be in place in order to successfully implement
the system. At a minimum that means a clearly-defined strategic
human capital plan, and the capabilities to use these new
authorities both effectively and fairly. Among other things the
need for a modern, effective, credible integrated and hopefully
validated performance management system that provides for a
clear linkage between institutional, unit and individual
performance-oriented outcomes, and also as appropriate,
considers the core values and other aspects of the organization
that should not change over a period of time, is a matter of
critical importance.
So in summary, Mr. Chairman, we think there are a number of
positive things here. We have some areas of concern, and there
are a few key points that we think will be critical on the way
forward in order to achieve a positive outcome while minimizing
the possibility of abuse.
Thank you, Mr. Chairman.
Senator Voinovich. Thank you, Mr. Walker.
We also have with us today Ron James, the Chief Human
Capital Officer for the Department of Homeland Security, and
Ron Sanders, Associate Director for Strategic Human Resources
Policy, Office of Personnel Management.
I know both of you have invested an incredible amount of
time and energy in developing these regulations. I thank you
for all the time and effort that you have put into this task,
and I appreciate the cooperation that has existed between the
Department of Homeland Security and the Office of Personnel
Management. I had some concerns that communication would not be
forthcoming. It has been, and I applaud Secretary Tom Ridge and
Director Kay Coles James for the job that they have done. Of
course, I understand you are the ones who put in all the work.
Mr. James.
TESTIMONY OF RONALD J. JAMES,\1\ CHIEF HUMAN CAPITAL OFFICER,
U.S. DEPARTMENT OF HOMELAND SECURITY
Mr. James. Thank you, Mr. Chairman, and I will pass along
your kind words to the people who did the heavy lifting, my
staff and OPM's staff.
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\1\ The prepared statement of Mr. James appears in the Appendix on
page 74.
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Senator Akaka, Senator Pryor, it is a privilege to appear
before the Subcommittee.
As Congress recognized in creating the Department, we need
the ability to act swiftly and decisively in response to
critical homeland security threats and our mission needs. We
must continue to attract and retain highly-talented and
motivated employees who are committed to excellence, the most
dedicated and skilled people our country has to offer.
The current human resources system is too cumbersome to
achieve this. Following the publications of our proposal almost
a year ago, we received over 3,800 comments from the public,
our employees, their representatives, and Members of Congress.
After taking some time to examine those comments, we followed
the congressional direction to ``meet and confer'' with
employee representatives over the summer.
In early September we invited the National Presidents of
the NTEU and the AFGE to meet with the Secretary and the
Director of OPM to present their remaining concerns. While
these discussions further informed the development of final
regulations, there remain several areas where we have
fundamental disagreement. We believe those issues, such as
using performance rather than longevity as the basis for pay
increases and providing for increased flexibilities to respond
to mission-driven operational needs while balancing our
collective bargaining operations go to the very core of what
Congress intended.
We are creating open pay bands, pay progression within
those bands will be based on performance, not longevity. We are
also changing how market conditions impact pay. Under the new
system pay may be adjusted differently by job types in each
market. We are creating performance pools where all employees
who meet performance expectations will receive performance-
based increases.
The system will make meaningful distinctions in performance
and hold employees and managers accountable at all levels. With
some important modifications, as noted below, this is the
proposal we made last year.
The unions pressed for a meaningful role in the design of
further details in the pay-for-performance system. We provide
that through a process called continuing collaboration, and
through providing four seats for unions on the Compensation
Committee. None of these provisions were in the original
regulations. During the meet and confer labor unions voiced
strong concerns that the implementation schedule did not allow
adequate time to train managers and evaluate its effectiveness.
We have significantly modified our schedule. We will have
extensive training this summer. Training is the core of what we
should be about. We will be introducing our new performance
management system this fall. We are converting employees to the
new pay system over the next 3 years. We will be making
adjustments to their pay based on performance over the next 4
years, not 2 years.
Until employees are converted to the new pay system they
will continue to see adjustments to their pay under the GS
system. The vast majority of DHS employees will have two to
three full cycles under the new performance management system
before performance is used to distinguish levels of pay. We
hope this will allow greater time to create employee
understanding and confidence regarding how pay will be
administered fairly going forward.
At the request of the unions we also provided a role for
the employees and their representatives in the formal
evaluation of whether the new system is having its intended
effects. Congress granted the authority to modify our adverse
action and appeals procedure. We believe we have done that
while still protecting due process. In fact, we have shortened
the time frames, minimum notice period has been shortened from
30 days to 15 days, but we have expanded the minimum reply time
to 10 days. We have provided one unitary system for dealing
with performance and conduct, which will make the appeals
process easier to understand, particularly for those employees
who are affected.
At the request of labor representatives we have retained
the efficiency of the service standard for taking adverse
actions. We have also retained the Merit Systems Protection
Board to hear the vast majority of cases, and we have worked
with them, conferred with them, to get to that decision.
We have changed our proposed regulations to adopt at the
union's suggestion the preponderance of the evidence standard
for all adverse actions. We are also persuaded by our labor
unions to provide bargaining employees the option of grieving
and arbitrating adverse actions. These are significant changes
from last year's proposals. Arbitrators and the MSPB will use
the same rules and standards, the same burden of proof. We were
convinced by the labor organizations that our proposed bar on
mitigation should be modified, and it was. At a future date,
after consultation with the Department of Justice, the
Secretary will identify mandatory removal offenses that have a
direct and substantial impact on our ability to perform our
mission. We will again, thanks to union input, provide for
those offenses, when identified to be published in the Federal
Register and will ensure they are made known annually to all
employees. I think, sir, that the process is a lot better for
the union's involvement. I think they brought constructive
suggestions. Our regrets are that we could not accommodate all
of them.
Our regulations do require in the last area that we confer,
not negotiate, with labor unions over the procedures we will
follow in taking management actions, such as the critical
issues of assignment of work or deployment or personnel. And
the final regulations now require bargaining over the adverse
impact of management actions on employees when that impact is
significant and substantial and the action is expected to
exceed 60 days.
We also, lastly, altered our proposed regulations to
provide for mid-term bargaining over personal policies,
practice and matters affecting working conditions. We also
agreed to provide binding resolution of mid-term impasses by
the Homeland Security Labor Board. The FLRA will continue to
hear matters including bargaining unit determinations, union
elections, individual employees, ULPs and exception to
arbitration awards.
Mr. Chairman, we developed these regulations with extensive
input from our employees and from their representatives. We
listened and we will continue to listen. I pledge that to you
personally. We made changes as a result of their comments. We
believe that we have achieved the right balance between core
civil service principles and mission essential flexibilities.
Thank you.
Senator Voinovich. Dr. Sanders.
TESTIMONY OF RONALD P. SANDERS,\1\ ASSOCIATE DIRECTOR FOR
STRATEGIC HUMAN RESOURCES POLICY, U.S. OFFICE OF PERSONNEL
MANAGEMENT
Dr. Sanders. Thank you, Mr. Chairman, Senator Akaka, and
Senator Pryor. It is my privilege to appear before you today to
discuss the final regulations implementing a new human
resources (HR) system for the Department of Homeland Security
(DHS), a system that we truly believe is as flexible,
contemporary and excellent as the President and the Congress
envisioned. It is the result of an intensely collaborative
process that has taken almost 2 years, and I want to express
our appreciation to you for your leadership and that of the
Subcommittee in this historic effort. Without that leadership,
we wouldn't be here today, and we look forward to it in the
future.
---------------------------------------------------------------------------
\1\ The prepared statement of Dr. Sanders appears in the Appendix
on page 80.
---------------------------------------------------------------------------
Mr. Chairman, with the Homeland Security Act of 2002, you
and other Members of Congress gave the Secretary of DHS and the
Director of the Office of Personnel Management (OPM)
extraordinary authority, and with it a grand trust to establish
a 21st Century human resource management system that fully
supports the Department's vital mission without compromising
the core principles of merit and fitness that ground the
Federal civil service. Striking the right balance between
transformation and tradition, between operational imperatives
and employing union interest is an essential part of that
trust, and we believe we have lived up to it in the final
regulations.
I would like to address that balance this morning with a
particular focus on performance-based pay, employee
accountability, and labor relations.
First, pay-for-performance. The new pay system established
by the regulations is designed to fundamentally change the way
DHS employees are paid, to place far more emphasis on
performance and market in setting and adjusting rates.
But will it inevitably lead to politicization, as some have
argued? Absolutely not. All Federal employees are ``protected
against arbitrary action, personal favoritism or coercion for
partisan political purposes.'' Those statutory protections are
still in place and still binding on DHS, and they most
certainly apply to decisions regarding an employee's pay.
If a DHS employee believes that such decisions have been
influenced by political considerations, he or she has the right
to raise such allegations with the Office of Special Counsel
(OSC), to have OSC investigate and where appropriate prosecute,
and to be absolutely protected from reprisal and retaliation in
so doing. These rights have not been diminished in DHS in any
way whatsoever. The new system also provides for additional
protections that guard against any sort of political favoritism
in individual pay decisions.
Under the new system, supervisors have no discretion with
regard to the actual amount of performance pay an employee
receives. That amount is driven strictly by a mathematical
formula, an approach recommended by the DHS unions during the
meet and confer process. With one exception, the factors in
that formula cannot be affected by an employee's supervisor.
Rather, they are set at higher headquarters with union input
and oversight through a new Compensation Committee, another
product of the meet and confer process, that gives them far
more say in such matters than they have today. The one
exception is the employee's annual performance rating. That is
the only element of the system within the direct control of an
employee's immediate supervisor, and that is subject to higher-
level approval.
The regulations allow an employee to challenge their rating
if he or she doesn't believe it is fair, and if it is a
unionized employee, all the way to a neutral arbitrator if
their union permits. That is another product of the meet and
confer process.
Mr. Chairman, with these statutory and regulatory
protections providing the necessary balance, as well as
intensive training in a phased implementation schedule to make
sure DHS gets it right, we are confident that the new pay-for-
performance system will reward excellence without compromising
merit.
Let us take a similar look at employee accountability and
due process. DHS has a special responsibility to American
citizens. Many of its employees have the authority to search,
seize, enforce, arrest, even use deadly force in the
performance of their duties. Their application of those powers
must be beyond question. By its very nature, the DHS mission
requires a high level of workplace accountability. We believe
the regulations ensure this accountability but without
compromising any of the due process protections Congress
guaranteed.
In this regard, DHS employees are still guaranteed notice
of a proposed adverse action, the right to reply before any
final decision is made, and the right to representation. The
final regulations continue to guarantee an employee the right
to appeal an adverse action to the Merit System Protection
Board (MSPB) or to arbitration, except those involving a
mandatory removal offense, and I hope we have a chance to talk
about that later this morning.
Further, in adjudicating employee appeals, regardless of
forum, including the Mandatory Removal Panel, the final
regulations place a heavy burden on the Agency to prove its
case. Indeed, in another change resulting from the meet and
confer process, the regulations actually establish a higher
overall burden of proof, a preponderance of evidence standard
for all adverse actions, whether based on conduct or
performance. While this standard currently applies to conduct-
based adverse actions today, it is greater than the substantial
evidence presently required in performance-based actions. In
DHS, it's now required for both.
Finally, the regulations authorize MSPB, as well as
arbitrators, to mitigate penalties in adverse actions. The
proposed regulations precluded such mitigation, as does current
law, in performance-based adverse actions. However, the final
regulations allow mitigation when the Agency proves its case
against the employee by a preponderance of evidence. The
standard in the regulations is admittedly tougher than those
the MSPB and private arbitrators apply, but far more stringent
in performance cases where mitigation today is not even
permitted.
However, given the extraordinary powers entrusted to the
Department and its employees and the potential consequences of
poor performance or misconduct to its mission, DHS should be
entitled to the benefit of any doubt in determining the most
appropriate penalty. That is what the new mitigation standard
is intended to do, but it is balanced by the higher standard of
proof overall.
Finally, let's look at labor relations. Accountability must
be matched by authority, and here the current law governing
relations between labor and management is out of balance. Its
requirements potentially impede the Department's ability to
act, and that cannot be allowed to happen.
Now, you will hear that the current law already allows the
Agency to do whatever it needs to do in an emergency. That is
true. However, that same law does not allow DHS to prepare or
practice for an emergency, to take action to prevent an
emergency, or to reassign or deploy personnel and new
technology to deter a threat, not without first negotiating
with unions over implementation, impact, procedures, and
arrangements. On balance, the regulations ensure that the
Department can meet its most critical missions, but in a way
that still take union and employee interests into account.
Mr. Chairman, if DHS is to be held accountable for homeland
security, it must have the authority and flexibility essential
to that mission. That is why Congress gave the Department and
OPM the ability to create this new system, and that is why we
have made the changes that we did. In so doing, we believe we
have succeeded in striking an appropriate balance between union
and employee interests on one hand and the Department's mission
imperatives on the other.
Mr. Chairman, that concludes my statement. I would be happy
to answer any questions.
Senator Voinovich. Thank you very much. We will have 5
minute rounds of questions by Members of the Subcommittee.
To both Mr. James and Dr. Sanders, are there any Federal
agencies successfully using pay-for-performance that you intend
to use as benchmarks in going forward with the program?
Dr. Sanders. Mr. Chairman, you know how much time we spent,
not required by law, before we even began drafting the proposed
regulations with a joint labor-management design team. That
design team went all over the country looking at, among other
things, pay-for-performance systems, including those that have
been tried and tested in the Federal Government. We looked at
all of them, visited many of them. There are benchmarks out
there. This is not uncharted territory. There are between
70,000 and 80,000 Federal employees under pay-for-performance
systems today. We have learned from them. One of the things we
learned, for example, was to build your performance appraisal
system first before you apply it to pay-for-performance. That
is something that has now been incorporated into the Homeland
Security implementation schedule. We have also learned from
mistakes, for example, the Federal Aviation Administration's
current internal equity problems with its collectively-
bargained pay system on one hand and its administratively-
established system on the other. I hope we get a chance to talk
about that.
But there are benchmarks. There is experience. This is not
uncharted territory, and we are confident that we have learned
both the good lessons and the bad from others and will be able
to proceed and not repeat some of the mistakes.
Senator Voinovich. Mr. James, would you like to comment?
Mr. James. I think, Senator, as you know, I am from outside
the government, and so I find that we sort of look at this pay-
for-performance issue like it is in fact a new issue. In my 25
years of practice I do not personally know of any Fortune 500
company that bases pay on longevity, and the answer is that we
do plan to benchmark against what is out there, what is
happening at some of the other agencies in government, but we
also plan to draw on the experience and expertise of what has
happened in the private sector.
I think it is analogous. And I think we are not going to
just look at what is going on in the private sector when it
comes to, for example, the pay issue. We are going to look at
those folks against who we compete, and that could be State
Governments who hire law enforcement or local governments that
hire law enforcement people or the like.
So we are open to exploring what is the best most effective
way to in fact get to pay-for-performance, get to performance
management, get to market surveys.
Senator Voinovich. Are you planning on implementing this
system in an incremental basis or will you try to implement it
all at once?
Mr. James. Absolutely and unequivocally we are not going to
do this all at once. Our original plan was to roll this out in
basically 2 years after the meet and confer. We had push back
from the union, and I would suggest appropriately so, that this
was a heavy lift, that we were not going to have a chance for
input, evaluation, for tinkering, for adjustments, for focus
groups with employees, for getting sustained feedback from all
of our stakeholders. We have now--our first actual impact in
the pay-for-performance arena, which will be for about 8,000
people in 2007. The majority of our employees will not be
impacted in terms of having the performance management, that is
how they do under the performance management system, impact
their pay until 2009.
I think that was an excellent suggestion by the union. We
had colleagues who said that is the right way to do it, get it
right, take it slow. We clearly are not going to do this quick
and fast, and we may have to make other adjustments along the
way, sir. I mean I think the data is going to drive, and it
should drive, how we make the corrections and how fast we
continue to roll this out.
Senator Voinovich. Mr. Walker, do you have any comments on
the difficulty of implementing an effective pay-for-performance
and performance management system? One issue we talked about
using a pass/fail rating system.
Mr. Walker. Right.
Senator Voinovich. What is your opinion of a pass/fail
system? Do you think that the pass/fail system is appropriate
for DHS at the entry-level band?
Mr. Walker. I do not like pass/fail systems under any
scenario. I do not think they can result in meaningful
differentiation in performance levels.
I think a three standard system is going to be difficult to
create meaningful distinctions in performance. Time will tell,
but I have my doubts about that. I think it is important to get
it fair rather than fast. I would compliment the Department in
recognizing the need to move on an installment basis and to
employ a phased implementation approach. I also would
compliment them in recognizing that you have to have the
infrastructure in place which means a modern, effective,
credible, and hopefully validated performance appraisal system,
that you go through at least one full cycle before you think
about tying it to pay. So I think they clearly have made a
number of changes, but as the old saying goes, the devil is in
the details and a lot of the details are not known yet. So we
look forward to seeing those details.
Mr. James. Senator, if I could just comment on the pass/
fail and try to bring some clarity to that issue, we are going
to walk at this very slow. As a generic proposition we do not
see pass/fail as the right way to go in terms of across the
board. We only wanted to preserve the right to talk about pass/
fail in the context of entry-level development employees. For
example, we have employees who are in school for 6 to 9 months.
We have employees who if they do not pass a certain course in
terms of technology have to go back. We have employees who if
they do not pass marksmanship, they are not certified to carry
a gun, they have to go back. They cannot go forward.
So a lot of what happens, at least in our law enforcement
community and our folks at the border in their developmental
stages, is in fact benchmarked or determined by a pass/fail. So
we wanted to have the option available at that level and at
that level only to be able to use that as a mechanism because
in some instances individuals will not even have a supervisor
for 9 months, and in some instances they may not have a
supervisor for a year because if they do not get certified to
carry a gun, they may in fact be pass/fail--up or out. That is
the limitation.
So when we talk about pass/fail our notion is, and my
personal professional judgment is, coming from the private
sector, is that we do not want to use pass/fail anywhere beyond
the entry level, the training level, and the school level.
Senator Voinovich. Thank you for your clarification.
Senator Akaka.
Senator Akaka. Thank you very much, Mr. Chairman.
Mr. James and Dr. Sanders, I would be remiss if I did not
thank you and your respective staff for the hard work that was
done on these regulations, and I also thank you for your
testimony today.
Let me begin my time with an observation. Although the
regulations are not specific about the new pay-for-performance
system, I believe that given the obvious anxiety employees are
feeling in the Administration's proposal to expand DHS like
flexibilities to other agencies, it would have been advisable
for DHS and OPM to be more specific about pay-for-performance.
Understanding the complexity of the issue, I trust that you
will provide detailed information on the new pay-for-
performance system to our Committee and this Subcommittee well
before implementation, and I look forward to that.
I also would like to say to Mr. Walker that it is always
good to have you with us, and I have enjoyed working with you,
and you know how much I value your opinion. Throughout your
tenure as Comptroller General you have done much to foster
accountabilities, transparency and employee involvement in the
Federal Government. I know that the Governmental Accountability
Office has a great deal of experience in implementing a pay-
for-performance program. Would you discuss the amount and the
type of training GAO employees have received and will receive
on this system?
Mr. Walker. Thank you, Senator Akaka. First, GAO has had
broad banding since the late 1980's, so this is not a new
concept to us. We have years of experience dealing with broad
banding. We have had some form of pay-for-performance for a
significant majority of our workforce since the late 1980's,
but as a result of the latest round of legislation that
Congress gave us in 2004, we now have the additional
flexibility to be decoupled from the Executive Branch and to be
able to have a more market based and performance oriented
compensation system going forward than we had in the past.
We now have a situation where all but less than 10 of our
employees are covered by broad banding. That is out of 3,250.
All but about 10 will be covered by pay-for-performance. We are
doing this in phases or installments. We are conducting market-
based compensation studies in order to be able to ascertain
what the appropriate compensation ranges are for the different
career streams or occupations and the different levels of
responsibility and authority. We have completed that with
regard to about 80 percent of our workforce, and we are about
to undertake it for the balance of our workforce.
Importantly, before we ended up implementing any new
performance based compensation flexibilities we had designed
new competency based performance appraisal systems that were
developed in conjunction with our employees, that were
validated by our employees. We also incorporated a number of
safeguards to help assure consistency and protect against abuse
as a supplement to the external appeal rights that our
employees have though the Personnel Appeals Board, which is an
independent body relating to GAO. There was a variety of
training that was provided at each of the major key points in
time in order to try to help people understand the various
elements that were necessary to make it successful.
I guess the last thing I would say on this is I personally
spent a tremendous amount of time on this. I personally
communicated with our employees through live closed circuit
television and other mechanisms on numerous occasions and I
will continue to do that. These so-called CG charts are
designed to address what we are doing, why we are doing it, how
and when we will do it. We also have a GAO Employee Advisory
Council lead, which is a democratically elected group that
represents our employees. We treat them the same as our top
executives as to consultation on key issues. EAC members have
and do ask me questions in front of all of our employees on a
recurring basis about these and other matters of mutual
interest and concern.
But training is critically important, and we have done a
lot of it, but you can always do more.
Senator Voinovich. Senator Pryor, thank you very much for
joining us today.
OPENING STATEMENT OF SENATOR PRYOR
Senator Pryor. Thank you, Mr. Chairman, and again, thank
you for your leadership on this issue. I know you are
passionate about trying to make government run more efficiently
and make sense, so thank you for your leadership once again.
Let me, if I may, start with Dr. Sanders. I guess I do not
have a copy of your statement in my packet, but the last
sentence you said during your prepared remarks, you said
something about needing to find the appropriate balance
between--tell me what you said again.
Dr. Sanders. The appropriate balance between the
Department's mission imperatives and employee and union
interests.
Senator Pryor. You are confident that we found that
balance?
Dr. Sanders. Yes, sir.
Senator Pryor. Mr. James, you said in your statement a few
moments ago that when you look at Fortune 500 companies you are
not aware of any company that ties pay to longevity?
Mr. James. Yes, sir. I think I indicated that in my
experience of 25 years of litigating and representing Fortune
500 companies, I am not personally aware of any company that is
a Fortune 500 company that ties pay to longevity. Yes, that is
what I said.
Senator Pryor. Is it not true in our economy in most
instances that the longer a person is with a company the more
he or she is paid; is that not generally true?
Mr. James. In the law firm, sir, that is not true. There
are people who go up or out, and that is private sector. I
think there is sometimes a great correlation between experience
and your pay, but when I look at the civil service system, for
example, I think it actually discriminates against people who
are older, more experienced, because it assumes that your first
years that you learn at a faster rate and you will get a pay
increase every year. Then when you get to be in your 6th or
your 10th year, it assumes that you only get a pay increase
based on the longevity of 3 years.
What we are trying to do is, like Dr. Sanders said, is find
parity, find a balance. And in the pay area, yes, people tend
to get paid more the wiser and more they work. But the way the
government system is now, in fact, is to the contrary. It
assumes that older people cannot learn or at least it assumes
older workers are not going to learn as fast.
Senator Pryor. Is that not inconsistent with what you said
a few moments ago, that you are not aware of any Fortune 500
company where pay is tied to longevity? Is it not in some way
at least loosely related to longevity?
Mr. James. Sir, I would respectfully disagree. I would say
in the law firm it is related to competencies.
Senator Pryor. In a law firm?
Mr. James. In the law firm I am saying is related to
competencies----
Senator Pryor. Law firms are not Fortune 500 companies and
the government is not a law firm. So you said----
Mr. James. I understand that, but if I could finish.
Senator Pryor. You said in your statement that you are not
aware of any Fortune 500 company that ties pay to longevity.
Mr. James. In my experience, that is correct, sir.
Senator Pryor. And now the example you are giving is the
law firm.
Mr. James. I was going to give some additional examples.
Senator Pryor. I used to be in a law firm and I know how
that works and I know that there are a lot of factors
oftentimes that law firms consider in paying their employees
and partners, etc. But go ahead.
Mr. James. On the management side, for example, like with
freight forwarders or with companies like airlines, managers
are paid for delivering the results. It is results oriented
business. That is my general observation.
Senator Pryor. Look, again, in the private sector,
oftentimes results mean profitability. And in the government
results are not tied by profitability because the government is
not there to make a profit. To me there have to be other
standards in which you measure results in government. Do you
agree with that?
Mr. James. I would agree with that, sir, with the
modification that the needs are the same for example. Perhaps
such a concern about the retention of employees because if you
do not it is expensive. The government should have that same
concern. The private sector is concerned about the ability of
employees to learn new skills, new competencies, as whatever
field they are in changes. The government should have that very
same concern. I cannot disagree with your comment that it is
nonprofit, but I think that what we need to bring from the
private sector is the attitude, is that people in the
government are public servants and we need to get better each
year. We need to raise the bar. We need to have concern about
excellence.
Senator Pryor. I agree with that 100 percent. I mean I am
all about trying to bring the best private sector ideas into
government, but I also understand, or I recognize at least that
there is a material difference in government service versus
working in the private sector.
I am sorry. Mr. Walker, did you want to add something to
that?
Mr. Walker. When you are done, Senator.
Senator Pryor. I am done, go ahead.
Mr. Walker. Senator, clearly there are differences between
the public sector and the private sector. I have 20 years of
experience in the private sector and now about 12 years in the
public sector. There are some compensation arrangements in the
private sector that are primarily longevity based or heavily
longevity based. They typically involve certain types of
occupations and many times collective bargaining agreements.
I think what is important is to recognize the fact that for
many Executive Branch agencies that are covered by the General
Schedule system, 85 percent plus of the annual pay raises that
any individual will receive on average has nothing to do with
skills, knowledge, or performance.
Senator Pryor. But is not a lot of that the cost of living
adjustment?
Mr. Walker. It is several things. First, Senator, you are
correct in saying that the annual across the board adjustment,
which as you know is much more than cost of living because last
year it was 3.5 percent, while cost of living was 2.1 to 2.3
percent. But in addition to that you have step increases which
are merely the passage of time, and furthermore, you can have
merit step increases which should be performance related.
However, I would also suggest that because of the poor
performance appraisal and management systems in the government
they do not always correlate as much with exceptional
performance as they should.
So a vast majority of annual compensation increases under
the GS system have nothing to do with skills, knowledge and
performance, and it needs to be more skills, knowledge and
performance oriented while having safeguards to prevent abuse.
Dr. Sanders. Senator, can I interject?
Senator Pryor. Sure.
Dr. Sanders. You may not know this, but today Federal
employees whose performance is rated unacceptable still get the
across the board adjustments and locality supplements, even
though their performance is rated unacceptable.
Senator Pryor. In fact, I agree with everything David
Walker said a minute ago. I think that the government needs to
do a better job--and I know I have heard Chairman Voinovich
talk about this as well--the government needs to do a better
job of managing itself. I think we all recognize that, and I
think that we all have that common goal. I think the question
is, what are the appropriate steps to get there?
I think that you talked about, Mr. Walker, in your
statement you said something to the effect that it is more
important to get it fair rather than fast or something to that
effect. I agree with you. I think we just need wisdom here as
we pursue this course, to try to make government more efficient
and more effective, but also I think that we do need to
recognize the inherent difference in government and in
business, and we should take the very best ideas that business
has to offer, take them from corporate America or world models,
whatever they may be, and try to incorporate them into
government, but in my mind it is not a one-for-one proposition.
We need to take elements of the very best and implant it in
government. Thank you, Mr. Chairman.
Senator Voinovich. Thank you, Senator.
I would like to have a 3 minute round of questions for each
of us. I think there are some other issues on people's minds.
Mr. James, implementing the new personnel system will
require a massive investment in training and retraining of the
workforce. My question then, is the workforce large enough to
participate in the training or will you need to bring in
outside help, for example some float group so that front line
employees can receive the training they need, without
shortchanging the Department's day-to-day mission? Furthermore,
do you have enough people in house to conduct the training or
are you going to hire assistance? What are your thoughts as to
how this will happen?
Finally, the President's budget requested $53 million in
fiscal year 2006 for implementation. Is this adequate? Do you
have any idea of what the implementation cost will be for
future years?
Mr. James. Thank you, Senator. I cannot agree with you more
that training and communications are at the very core of what
we need to be about if we are going to make this work and if we
are going to make it fair and if we are going to make it and
get it right. I would like to thank Congress and the Senators
who are assuring us that we had $10 million alone for training
in our budget in this current fiscal year. We have asked for
another $10 million. We are hopeful we will have that money
because we do need to change the culture and we need to inform
our employees, we need to inform our managers and we need to be
able to train the trainers. I am convinced that with the $10
million we have this year and hopefully with the $10 million we
will have next year, that we will be able to get the training
done. We will have to hire some outside experts. We will have
to hire some people who have done this before.
We have also talked, not about a float, sir, but we have
talked about some other issues like through the Chief Human
Capital Officer's Council, I have offered the opportunity for
individuals and other agencies who anticipate they may be going
down the same road as we are in 2 to 3 years, to send people
over to work with us, to help us with some of the training,
help us with some of what I would describe as getting a fresh
set of eyes on this, both as to the training and as to the
procedures or the regulations that we are writing.
As to your last question, the $53 million, yes, that is
adequate, and the reason it is adequate is because when we
originally requested monies, we had anticipated rolling out the
pay-for-performance in 2 years. We basically now have elongated
that and we believe by elongating that we will in fact have
sufficient monies to get this done and get it done right, get
it done fair, and get it done with the kind of input that it
will take.
Senator Voinovich. Senator Akaka.
Senator Akaka. Thank you very much, Mr. Chairman.
Dr. Sanders, in addition to serving as Ranking Member on
this Subcommittee I am proud to be the Ranking Member on the
Senate Veterans' Affairs Committee and preserving veterans'
preference is very important to me. Would you please explain
how veterans' preference is protected under the DHS
regulations, and do you know whether there are any changes to
current veterans' preference regulations or statutes either in
principle or in practice?
Dr. Sanders. Sir, I can state unequivocally that veterans'
preference has not been diminished at all in any way whatsoever
in these final rules. In fact, while there were a number of
options that considered that, both DHS and OPM said
unequivocally, we are not going to touch veterans' preference.
I will give you an example where in fact we have extended
the privileges we accord our veterans and which they deserve.
In the case of employees who first come to the Department, we
have created something called an initial service period that
can be up to 2 years, primarily to accommodate extended
training and development cycles, some of the occupations that
Mr. James mentioned. During that initial service period it is
easier to remove those employees. In the case of veterans, we
have retained the current 12 months probationary period. Once
they complete 12 months they get full due process and hearing
rights where non-preference eligibles do not until the
conclusion of that initial service period.
We have extended that same right to veterans in excepted
service appointments. Where today a veteran, in an excepted
service appointment, does not have any rights until after 2
years, we have now given that veteran rights after 12 months,
full appeal rights to MSPB if there is any adverse action
taken. So we have not only protected what exists, but we have
extended it.
Mr. James. Could I just provide, sir, a footnote to that
that may be of interest to you?
Senator Akaka. Yes, Mr. James.
Mr. James. Secretary Ridge and I met with a coalition of
about 25 veterans' groups in the month of December, and at that
meeting Secretary Ridge committed that he would reinforce his
commitment to making sure that veterans' affairs and veterans'
preference and veterans' issues were a primary concern to the
Department, and he promised that group that he would issue a
management directive.
I am pleased to tell you that his very last act on his very
last day was to issue a management directive on veterans'
affairs and how important it is to the Department, and
suggested some, what I would describe as some review procedures
that were mandatory when veterans were being considered for
jobs, and if the Subcommittee will permit, I will be happy to
either share that with the Subcommittee or provide that to the
Senator.
Senator Akaka. Thank you. As you know, because of the
situation today and the deployment of many reservists and
National Guard troops, this question has become very important,
and I thank you so much for your responses.
Thank you, Mr. Chairman.
Senator Voinovich. Senator Pryor.
Senator Pryor. I will try to keep mine shorter this time
because I went a little long last time. Sorry about that.
But if I may, Dr. Sanders, in Washington they call this a
``prebuttal'' but we are going to have a witness here in a
little bit. I think he is on the next panel, John Gage,
President of the AFGE, and I have looked through some of his
testimony, and in his testimony he talks about actions that
employees have taken to try to enhance security and improve how
the various agencies have operated, and he goes through some
policies that they have challenged and they think that on the
grounds they have a better way to do things, etc. We will let
him talk about that.
But are you aware of any real concrete examples of where
the existing personnel system that we have in place today has
left America less protected than it should be?
Dr. Sanders. I will let others judge whether America is
less protected, but let me give you some examples of where we
believe the current system, particularly the current collective
bargaining system needs to be recalibrated, and that is what we
have tried to do in the final regulations.
Under current law, before management can exercise any of
its essential operational rights, let us say, for example, the
introduction of new search or surveillance technology, it must
first bargain with the union over implementation, impact,
procedures, and arrangements. It must delay acting until those
negotiations are concluded.
Senator Pryor. So it is too cumbersome, too slow?
Dr. Sanders. Yes. Here is the balance we have tried to
strike in the regulations, and there are examples: The
introduction of personal radiation detectors, vehicle and
container inspection systems, firearms policy, etc. All of
those actions are reserved to management, but the law requires
bargaining over implementation before management can institute
them.
What we have tried to do in the final regulations is say
management can go ahead and institute them. In those cases, the
one I have just given you, where there is literally a long-
lasting effect--we know those policies or technologies are
going to be in place--management has to bargain over the impact
of those new changes, and deal with appropriate arrangements
for employees, but after they have acted. They do not delay
action, but they still bargain afterwards.
Similarly with work assignment and deployment procedures.
There are examples, Senator, where the deployment of personnel
within a commuting area from a seaport to an airport is delayed
because of negotiated work rule procedures, or where those work
rule procedures require you to send the most senior employee
when the least senior would do or vice versa.
Here is the balance we have tried to strike. Some
procedures remain fully negotiable. Those procedures that deal
with so-called personnel management rights, procedures that
deal with discipline and promotion and performance management,
those remain fully negotiable, as negotiable in the final rules
as they are under current law. But those procedures that deal
with operational matters, the assignment of personnel, the
deployment of personnel, those are no longer subject to
collective bargaining, but the final regulations obligate the
Department to sit down and confer with the unions over those
procedures for 30 days to try to reach agreement, to try to
work out their differences, but ultimately they do not make
them subject not to just collective bargaining, but resolution
by some third party who has no accountability for the
Department.
The other thing that we added in the final regulation,
Senator, is the ability of employees and the union to enforce
whatever rules and regulations management may establish through
the negotiated grievance and arbitration procedures. While we
may have limited the union's right to negotiate some
procedures, those procedures that deal with operational
matters, we have retained an employee's right and the union's
ability to try to enforce those procedures, make sure
management is doing what it said it was going to do, through
grievance and arbitration.
So again, we have tried to strike a balance. It has not all
gone away as some would allege.
Senator Pryor. Thank you, Mr. Chairman.
Senator Voinovich. I would like to thank the panel. I look
forward to future oversight hearings that we will have. Mr.
Walker, I appreciate your continued interest in what is
happening in Homeland Security.
I would like to add, Mr. James and Dr. Sanders, I am very
much impressed with the detail that you have provided. You
understand what you are doing, and that is very comforting to
me. Often people are not as familiar with some of the details
as you are, and I am impressed. I thank you for the time and
effort you have put into it.
In the future the Subcommittee will examine specific areas
of the new human resources system, such as the transition from
the General Schedule to pay banding, the fairness of training,
both generally for the DHS workforce and specifically for the
new personnel system, and whether employees' voices are heard
and responded to as the personnel system is implemented.
In addition we will evaluate the effectiveness of the top
leadership of the Department and the thoroughness of DHS's
communication strategy. For example, I am very impressed with
what Mr. Walker has discussed regarding his involvement in
communicating with GAO employees. So often things get started
and then employees are not informed. As a result, rumors are
circulated and people believe things that are not a fact.
Thorough communication for the new personnel system is
extremely important.
Furthermore, the performance management system, including
the Department's human capital plan, is something that this
Subcommittee will continue to monitor. I want you to know that
I want the new personnel system to be a success. I want it to
be a success because we are depending on this Department for
our security. I am very concerned about the stress that many
Americans feel in terms of the potential of terrorism. I would
like for my children and grandchildren to live in an America
that they know is secure. I do not want them to have these
worries with them every day as they go to and from work or to
school. It is a heavy, heavy responsibility that you have.
Another issue as you know, is on whether the similar
reforms should be extended to the rest of the government. I
have talked to the Chairman of this Committee about this issue.
How well the Department of Homeland Security implements this
system will heavily influence whether those of us in Congress
are going to be receptive to that proposal.
Thank you for being here.
Mr. James. Senator, if I could just on a personal note,
thank you, and I promise you personally that I heard your
comments about the need to continue the collaboration, and
whether it is performance management or labor relations, where
we do have significant differences, we will continue. I will
personally continue to keep the communication lines open
because it is critical that we involve our employee
representatives. I will take your advice, not as a criticism
but just as a admonishment that I need to do better, that we
will do better going forward. I thank you.
Senator Voinovich. Thank you.
We will take a 5-minute recess as the next panel comes to
the table.
[Recess.]
Senator Voinovich. If our second panel will come to the
witness table, I appreciate your patience.
Do you swear that the testimony you are about to give is
the truth, the whole truth, and nothing but the truth, so help
you, God?
Mr. Perkinson. I do.
Ms. Kelley. I do.
Mr. Gage. I do.
Mr. Brown. I do.
Mr. Mann. I do.
Senator Voinovich. Let the record show that the witnesses
answered in the affirmative.
Our next panel consists of representatives of the employees
at the Department of Homeland Security: Darryl Perkinson is the
National Vice President for the Federal Managers Association;
Colleen Kelley is President of the National Treasury Employees
Union; John Gage is the National President of the American
Federation of Government Employees; Richard Brown is President
of the National Federation of Federal Employees; and Kim Mann
is the General Counsel of the National Association of
Agriculture Employees.
I want to thank all of you for coming today. I know that
you have spent the past 2 years working tirelessly with the
Department of Homeland Security and the Office of Personnel
Management on developing the new human resources management
system. I also know that you have many concerns. Some of you
have made them known to me privately, and we do look forward to
hearing your testimony today.
Mr. Perkinson, we will start with you. As I mentioned to
the other panel, I would like you to try to limit your remarks
to 5 minutes. Your complete statement will be printed in the
record. Mr. Perkinson.
TESTIMONY OF DARRYL A. PERKINSON,\1\ NATIONAL VICE PRESIDENT,
FEDERAL MANAGERS ASSOCIATION
Mr. Perkinson. Chairman Voinovich, Ranking Member Akaka,
and distinguished Members of the Subcommittee, I sit before you
today as the National Vice President of the Federal Managers
Association, which represents the interests of nearly 200,000
managers, supervisors, and executives in the Federal
Government, including those managers in the Department of
Homeland Security. I am presently a supervisor training
specialist at Norfolk Naval Shipyard in Portsmouth, Virginia,
where I have been in management for nearly 20 years. Let me
begin by thanking you for allowing me this opportunity to
express FMA's views regarding the final personnel regulations
at DHS.
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\1\ The prepared statement of Mr. Perkinson appears in the Appendix
on page 94.
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I hope that we can continue to have more opportunities in
the future to engage in this dialogue about the best way of
governing the most efficient and effective workforce to protect
American soil. Managers and supervisors are in a unique
position under these final regulations. Not only will they be
responsible for the implementation of the Department's new
personnel system, they will also be subjected to its same
requirements. As such, managers and supervisors are pivotal to
ensuring the success of this new system.
We at FMA recognize that change does not happen overnight.
We remain optimistic that the new personnel system may help
bring together the mission and goals of the Department with the
on-the-ground functions of the Homeland Security workforce.
Two of the most important components to implementing a
successful new personnel system are training and funding.
Managers and employees need to see leadership from the
Secretary on down that supports a collaborative training
program and budget proposals that make room to do so. We also
need the consistent oversight and appropriation of proper
funding levels from Congress to ensure that both employees and
managers receive sufficient training in order to do their jobs
most effectively.
As any Federal employee knows, the first item to get cut
when budgets are tightened is training. Mr. Chairman, you have
been stalwart in your efforts to highlight the importance of
training across government. It is crucial that this happens in
the implementation of these regulations. Training of managers
and employees on their rights, responsibilities, and
expectations through a collaborative and transparent process
will help to allay concerns and create an environment focused
on the mission at hand.
Managers have also been given the authorities under the
final regulations in the areas of performance review and pay-
for-performance. We must keep in mind that managers will also
be reviewed on their performance and hopefully compensated
accordingly. As a consequence, if there is not a proper
training system in place and budgets that allow for adequate
funding, the system is doomed to failure from the start. Our
message is this: As managers and supervisors, we cannot do this
alone. Collaboration between manager and employee must be
encouraged in order to debunk the myths and create the
performance- and results-oriented culture that is so desired by
these final regulations.
Managers have also been given greater authorities in the
performance review process that more directly links employees'
pay to their performance. We believe that transparency leads to
transportability, as intra-department job transfers could be
complicated by the lack of a consistent and uniform methodology
for performance reviews.
FMA supports an open and fair labor relations process that
protects the rights of the employees and creates a work
environment that allows employees and managers to do their jobs
without fear of retaliation or abuse.
The new system has relegated the authority for determining
collective bargaining rights to the Secretary. Toward this end,
the recognition of management organizations such as FMA is a
fundamental part of a collaborative and congenial work
environment. Title 5 CFR 251/252 allows FMA as an example to
come to the table with DHS leadership and discuss issues that
affect managers and supervisors. While this process is not
binding arbitration, the ability for managers and supervisors
to have a voice in the policy development within the Department
is crucial to its long-term vitality.
There has also been a commitment on the part of OPM, DHS,
and DOD to hold close the Merit System principles, and we
cannot stress adherence to those timely standards enough.
However, we also believe there needs to be additional guiding
principles that link all organizations of the Federal
Government within the framework of a unique and single civil
service.
We, at FMA, are cautiously optimistic that the new
personnel system at DHS will be as dynamic, flexible, and
responsive to modern threats as it needs to be. While we remain
concerned with some areas at the dawn of the system's rollout,
the willingness of OPM and DHS to reach out to employee
organizations, such as FMA, is a positive indicator of
collaboration and transparency. We look forward to continuing
to work closely with Department and Agency officials.
Thank you again, Mr. Chairman, for the opportunity to
testify before your Subcommittee and for your time and
attention to this most important matter. Should you need
additional feedback or have any questions, we would be glad to
offer our assistance. Thank you.
Senator Voinovich. Thank you, Mr. Perkinson.
Colleen Kelley, welcome back. You have appeared before this
Subcommittee on many occasions, and I am grateful for your
commitment to open communication on these important issues. I
know my staff appreciates the ongoing communication they have
with your staff. Thank you for being here today.
TESTIMONY OF COLLEEN M. KELLEY,\1\ PRESIDENT, NATIONAL TREASURY
EMPLOYEES UNION
Ms. Kelley. Thank you very much, Senator. Chairman
Voinovich, and Senator Pryor, I really appreciate the
opportunity for NTEU to share its views with you on the new DHS
personnel system. Fifteen thousand employees in the Department
are represented by NTEU and will live under these regulations.
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\1\ The prepared statement of Ms. Kelley appears in the Appendix on
page 110.
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It is unfortunate that after 2 years of collaborating with
DHS and OPM on this new system that I come before the
Subcommittee today unable to support the final regulations.
Because these regulations fall woefully short on a number
of the Homeland Security Act's statutory mandates in the area
of collective bargaining and employee appeal rights, NTEU,
along with our fellow Federal employee unions, has filed a
lawsuit in Federal court. The lawsuit seeks to prevent DHS and
OPM from implementing these final regulations related to these
areas and would order DHS and OPM to withdraw the regulations
and issue new regulations that fully comply with the relevant
statutes.
The Homeland Security Act requires that any new human
resource management system ``ensure that employees may
organize, bargain collectively, and participate through labor
organizations of their own choosing in decisions which affect
them.'' NTEU believes that the final regulations do not meet
this statutory requirement in the following ways:
Under the final personnel regulations, the responsibility
for deciding collective bargaining disputes will lie with a
three-member DHS Labor Relations Board that is appointed by the
Secretary with no Senate confirmation. A true system of
collective bargaining demands independent, third-party
determination of disputes. The final regulations do not provide
for that.
Second, under the final regulations, not only will
management rights associated with operational matters, such as
deployment of personnel, assignment of work, and the use of
technology, be non-negotiable, but even the impact and
implementation of most management actions will be non-
negotiable.
Third, the final regulations further reduce DHS' obligation
to collectively bargain over the already narrowed scope of
negotiable matters by making department-wide regulations non-
negotiable. Bargaining is currently precluded only over
government-wide regulations and Agency regulations for which a
compelling need exists.
A real-life example of the adverse impact of the
negotiability limitations on both employees and the Agency will
be in the area of determining work shifts, even when these
shifts last for more than 60 days. The current system provides
that employees have a transparent and explainable system. After
management determines the qualifications needed for employees
to staff shifts and assignments, negotiated processes provide
opportunities for employees to select shifts that take into
consideration important quality-of-life issues of individual
employees, such as child care, elder care, the ability to work
night shifts or rotating shifts. There will be no such
negotiated process under the regulations as issued. The impact
of these changes will have a huge impact on employees and be a
huge detriment to Homeland Security's recruitment and retention
efforts.
One of the core statutory underpinnings of the Homeland
Security Act was Congress' determination that DHS employees
should be afforded due process in appeals they bring before the
Department. The HSA clearly states that the DHS Secretary and
OPM Director may modify the current appeals procedures of Title
5 only in order to ``further the fair, efficient, and
expeditious resolution of matters involving the employees of
the department.'' Instead, the final regulations undermine this
statutory provision by eliminating the Merit System Protection
Board's current authority to modify unreasonable Agency-imposed
penalties. The new regs authorize the MSPB to modify penalties
only where they are ``wholly unjustified''. This ``wholly
unjustified'' is a new standard that will be virtually
impossible for DHS employees to meet.
The final regulations also provide the Secretary with
unfettered discretion to create a list of mandatory removal
offenses that will only be appealable on the merits to an
internal DHS Mandatory Removal Panel appointed by the
Secretary.
The President's 2006 budget again proposes that a similar
proposal that exists in the IRS today should be dropped. It is
known as the ``10 deadly sins,'' and the President's budget
wants it removed from the IRS to allow the Agency more
discretion. This draconian, inflexible provision should also be
dropped from the DHS regulations.
The final regulations as they relate to changes in the
current pay, performance, and classification systems of DHS
employees also remain woefully short on details. Currently,
performance evaluations have little credibility among the
workforce, but it appears that now these subjective measures
will become the determinant of individual pay increases under
the new system. This will lead to more recruitment and
retention problems at DHS, not less. This kind of a system will
be particularly problematic for the tens of thousands of DHS
employees, such as CPB officers, who perform law enforcement
duties where teamwork is critically important to their
successful achievement of the Department's goals.
Based on our serious concerns with regard to these
regulations, NTEU urges both Congress and the Administration
not to extend them throughout the Federal Government as
proposed. As was already noted, the Homeland Security Act
provided for these changes based on national security
considerations. Those considerations do not apply to the rest
of the government.
I appreciate and agree with the comments made by several
Senators on this Subcommittee that it would be premature to
expand these rules until there is at least some sense of their
impact in DHS. I look forward to continuing to work with this
Subcommittee to help the Department of Homeland Security meet
its critical mission. NTEU wants this Department to be
successful, just as every American does, and I look forward to
any questions you might have. Thank you.
Senator Voinovich. Thank you.
Mr. Gage, I had a fairly good working relationship with
your predecessor, Bobby Harnage. Since you have been on board,
you and I have not seen that much of each other, and I think
that I would like to see more of you and your staff. As we move
through this implementation process, talking about it would be
very helpful to me. I just want you to know I would welcome
your input, and thank you for being here today.
TESTIMONY OF JOHN GAGE,\1\ NATIONAL PRESIDENT, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES
Mr. Gage. Thank you, Senator Voinovich and Senator Pryor,
it is a pleasure to be here.
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\1\ The prepared statement of Mr. Gage appears in the Appendix on
page 122.
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Mr. Chairman, DHS regulations usurp not only the rights and
protections of our members, they also undermine the authority
of the Congress to set the standards for a politically
independent civil service. The DHS regulations rest upon a
false premise: That carefully designed civil service procedures
that have stood the test of time are an obstacle to homeland
security, and that union representation interferes with the
protection of the American public from terrorist threats.
Neither of these premises has any validity, but now DHS has put
forth a personnel system that undermines the integrity of the
civil service, its political neutrality, its merit-based
personnel management system, its market-based pay system, its
public accountability, and its tolerance for democratically
elected unions.
In the year-long process of formal and informal
consultation with those who would be directly affected by any
new DHS systems, the unions participated in absolute good
faith. We offered proposals that I describe in detail in my
written statement that conceded the Agency's right to implement
any action it considered necessary to protect homeland
security. But the Agency's problems were process, and to take
care of process problems they took away rights. And that is our
objection.
Our offers and our proposals were ignored in their
entirety. The DHS internal review panels are also described in
detail in my written statement. It is absurd to pretend that a
panel consisting solely of management appointees can be a fair
or disinterested arbiter of labor-management disputes. In
addition, DHS has insulated this inevitably biased panel from
outside review or accountability by dictating the MSPB
standards for adjudication.
Specifically, DHS has told the MSPB that in its review of
the penalties and disciplinary actions taken against DHS
employees, the MSPB may no longer consider the Douglas
mitigating factors which were developed by the courts and have
been successfully used by them for more than 25 years. These
factors include the nature and seriousness of the offense, its
relation to the worker's duties, position, and
responsibilities, whether the offense was intentional or
inadvertent, was committed maliciously or for personal gain, or
whether it was repeated. By DHS edict, the MSPB or arbitrators
can no longer consider a worker's past disciplinary record,
work record, length of service, or performance. The MSPB or
arbitrators may no longer check the consistency of the penalty
with those imposed on others for the same offense.
These are the kinds of considerations DHS has decided are
either not modern or not consistent with homeland security, and
these are the kinds of considerations that we think form the
basis of a fair and rational and politically independent civil
service system. We simply cannot understand how DHS can
interpret its authority to include dictating to the MSPB in
this way, and we cannot understand how anyone could connect
consideration of these kinds of mitigating factors with
exposing our Nation to an increased threat from terrorists.
The DHS regulations narrow the scope of collective
bargaining. In practice, neither management nor the affected
workforce will be able to negotiate over work schedules,
overtime, detailed selection methods, uniforms, dress codes,
health and safety procedures, or travel. And the Agency has
authorized itself without limitation to issue Agency-wide
prohibitions on bargaining over the few issues that remain
negotiable.
Finally, DHS gave itself the right to invalidate any
provision of an existing collective bargaining agreement. This
is not flexible. This is not modern. This is not even credible.
In the aftermath of the September 11 attacks, when the INS
official line was that our Northern border was entirely safe
and protected, two courageous front-line Border Patrol agents
from Michigan stepped forward to tell Congress the truth about
our Nation's vulnerabilities. As a direct response to these
disclosures, the Congress voted to triple the number of Border
Patrol agents, immigration inspectors, and Customs Service
personnel along the Northern border. The INS management's
direct response, however, was to release these Border Patrol
agents for speaking out, and it was only through the
intervention of their union and eventually the Congress that
the retaliatory firings were avoided. Under the DHS
regulations, the union will be unable to protect whistle-
blowers in cases like these, and all of us will be less secure
as a result.
The Agency likes to tout its rules as being mainly about
transforming the pay system into one that will reward high
performance. We wish that were so. The fact is that it is not a
pay system at all. It is unbridled discretion to set salaries
on an individual-by-individual basis. There will be no
necessary consistencies between salaries of those with
identical job duties or between salary adjustments for those
subject to the same market forces.
There is no extra funding to avoid having a zero-sum
competition that makes anyone's gain someone else's loss,
making a mockery of the kind of teamwork and cooperation that
is crucial for successful law enforcement. There is nothing in
place to hold managers accountable for pay decisions. There is
nothing to prevent pay-for-performance from being used to
depress overall Federal pay. And there is no doubt that it will
be used to drop the bottom out of Federal pay scales. We
predict chaos, litigation, and very low morale.
We also predict that you and your colleagues will be
hearing a lot from DHS employees. After all, Congress
established several chapters of Title 5 so that employee
concerns, whether individual or collective, could be raised and
resolved in an open, balanced, and fair system. With a
statutory system, no one promised that there would never be
problems, only that they could be resolved in ways that would
allow employees and their supervisors to get on with their work
and their lives. Now DHS employees' only recourse will be their
Representatives and Senators.
In closing, Mr. Chairman, I would like to urge this
Committee to initiate legislation that will restore the scope
of collective bargaining for DHS and, in so doing, reinstitute
checks and balances that are so necessary. We ask that you
ensure that whatever DHS managers do with pay, employees at
least be kept on par with the rest of the Federal workforce in
terms of funding so that the Agency does not suffer constant
turnover and the loss of experienced workers. We also ask you
to step in and restore the mitigation power to neutral outside
adjudicators and eliminate the internal Labor Relations Review
Boards that will have no credibility either within or outside
the Agency.
Thank you, Mr. Chairman.
Senator Voinovich. Thank you, Mr. Gage. Mr. Brown.
TESTIMONY OF RICHARD N. BROWN,\1\ NATIONAL PRESIDENT, NATIONAL
FEDERATION OF FEDERAL EMPLOYEES
Mr. Brown. Mr. Chairman, Ranking Member Akaka, and Senator
Pryor, thank you for allowing this testimony today. Certainly
the statement is longer than 5 minutes, but I will shorten that
up to something that I believe needs to be stated here
publicly.
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\1\ The prepared statement of Mr. Brown appears in the Appendix on
page 142.
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As you know, the National Federation of Federal Employees
is affiliated with the International Association of Machinists
and Aerospace Workers, and we have also been designated by the
National Association of Government Employees as well as the
Metal Trades Department of the AFL-CIO to deal with DHS
matters.
One of NFFE's principal DHS bargaining units is the U.S.
Coast Guard's Civil Engineering Unit of roughly 50 employees
out of Providence, Rhode Island (CEU Providence). The employees
at this facility serve the First Coast Guard District, the
Northeast, including all of New England and parts of New York
and New Jersey.
The employees of CEU Providence, mostly architects,
engineers, environmental specialists, planners, real property
specialists, and contracting officers, provide facilities
management and engineering services for the shore plan in the
First District, which covers over 1,500 structures located in
seven States. The shore plan consists of a variety of
structures that enable the Coast Guard operations, such as
piers, fueling facilities, aviation facilities, firing ranges,
barracks, communications towers, and aids to navigation. In
short, the employees of CEU Providence make sure our Coast
Guard has the facilities necessary to protect this country.
CEU Providence is a high-performing facility, with
approximately 85 percent of its work being done in-house, using
their own design professionals. The CEU Providence has received
awards for their efficiency, honoring their ability to save
millions in consulting fees and freeing those resources for
actual construction projects.
In April 2003, the employee representatives of the CEU
Providence bargaining unit from NFFE Local 1164 went into
contract negotiations with management. Keep in mind this took
place after the establishment of the Department of Homeland
Security.
Contrary to what DHS might want you to think is the case,
Department officials in contract negotiations had absolutely no
proposals whatsoever regarding national security. Now, I would
think that if labor unions and the work rules spelled out in
collective bargaining agreements were truly hampering national
security, the Agency certainly would have raised some concerns.
The reason they did not raise any concerns is that the unions
and the collective bargaining agreements do not impede national
security in any way. Under prior law, the Agency had the
ability to take ``whatever action may be necessary to carry out
the Agency mission during emergencies,'' including the ability
to remove an employee on his first offense or make unilateral
changes to working conditions if needed by acting first and
negotiating later. It is not just the CEU Providence
installation that has been unable to come up with any rationale
how unions might hamper national security. During the meet and
confer process with DHS and OPM staff, management was unable to
cite a single case where the union, or a collective bargaining
agreement, for that matter, had in any way compromised national
security nationwide.
But let me tell you where the overhaul of the personnel
system becomes problematic. I was telling you about the
contract negotiations at CEU Providence bargaining unit. By
July 16, 2003, the contract was agreed upon and signed. It was
shortly thereafter approved by the Agency head, who again had
no suggestions for changes related to national security. For
over a year now, management and bargaining unit employees have
lived happily under that contract.
The CEU Providence installation is a good example of
effective and productive labor-management relations at DHS. It
is evident that the rules under Chapter 71 are working well for
the Department. Under the newly issued regulations, I believe
labor-management relations at DHS will experience significant
breakdown, and success stories such as those at CEU Providence
will be hard to come by. I predict moving into a new system
will be a disaster for employees at the Department for two main
reasons:
One, under the new regulations, extensive questions will
emerge as to whether many of the articles and provisions of our
contract will be deemed negotiable under DHS rules. The parties
will be compelled to go before the DHS Labor Relations Board, a
board which does not currently exist, to answer questions under
procedures that are currently unwritten. Both sides will spend
a considerable amount of time preparing testimony, evidence,
and arguments that support its position. Rather than prompt,
efficient completion and execution of a collective bargaining
agreement, we will be seeking third-party assistance to apply
rules which have not been created. I ask you how these
frustrations, this delay, and this expenditure enhance homeland
security.
Two, DHS employees on the whole are uneasy about the new
personnel system. The uncurbed authority to impose severe
disciplinary penalties for illegitimate reasons, the ability to
significantly reduce the pay of employees without having to
provide any justification, and the power to arbitrarily
reassign employees anywhere in the country on a temporary or
permanent basis will be demoralizing to Federal workers and
will reduce the ability to recruit and retain quality
employees. This will substantially hurt the Department's
ability to carry out its mission.
NFFE greatly appreciates the Subcommittee's decision to
hold this hearing and to listen to the views of the DHS
employee representatives. It is our opinion that the
authorities granted to DHS under the new regulations are overly
broad and excessive. More importantly, they are not in
compliance with the Homeland Security Act on a number of
accounts. The sum total of the new system as proposed is one
that will be demoralizing to Department employees. Implementing
this personnel system will certainly have harmful influence on
the ability of the Department to carry out its mission, as I
stated earlier.
This concludes my statement. Once again I thank the
Subcommittee for the opportunity to give my testimony.
Senator Voinovich. Thank you, Mr. Brown. Mr. Mann.
TESTIMONY OF KIM MANN,\1\ ON BEHALF OF THE NATIONAL ASSOCIATION
OF AGRICULTURE EMPLOYEES
Mr. Mann. Mr. Chairman, and Senator Akaka, I represent the
National Association of Agriculture Employees, by far the
smallest union at the table, and we do appreciate an
opportunity to address this Subcommittee. We certainly agree
with the specific detailed critique given by Colleen Kelley,
John Gage, and Richard Brown, and I am not going to try to
repeat their comments here today. But I wanted to give you
first a very brief glimpse as to what NAAE is and, more
importantly, who we represent. We are unique. We want to
express more than the details about the system which we believe
is flawed. We want to express how that flawed system will
impact the people it is intended to govern. And we believe that
impact also is going to have a big impact on the mission of the
Department of Homeland Security.
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\1\ The prepared statement of Mr. Mann appears in the Appendix on
page 152.
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We represent 2,000 bargaining unit positions--and that is
the key word, positions--that were transferred to the
Department of Homeland Security in March 2002. These 2,000
positions represent employees we call Agricultural Specialists
and Agriculture Technicians, and they are unique. They have a
unique mission. Their mission, not like these gentlemen, not
like Ms. Kelley's people, but their mission is to protect
American agriculture. That is one of the stated primary
missions of the Department of Homeland Security, according to
the Homeland Security Act. The 2,000 positions came over from
the U.S. Department of Agriculture, from an Agency within USDA
called Animal and Plant Health Inspection Service. The mission
of these 2,000 transferred employees really is to protect
American agriculture. They do that by performing agriculture
quarantine inspection services, or what we call AQI services.
No one else in CBP, Customs and Border Protection, has the
education, the training, or the expertise to perform those
services. NAAE, like NTEU and AFGE, participated actively in
the DHS process that led to these regulations.
We have a very simple, straightforward message that we
would like to deliver to this Subcommittee this morning, and
that is, if these regulations are allowed to go into effect as
written, they will jeopardize American agriculture. Count on
it.
During the past 2 years, CBP has watched its cadre of
Legacy Agriculture employees--that is what we call our
Agriculture Specialists and Technicians--dwindle from 2,000-
plus positions, transferred in March 2003, to approximately
1,300 people today. That is about a 40-percent decline in
personnel. These are the trained, highly educated professionals
who are charged with protecting American agriculture. The how
and the why behind this dangerous decline is really the key to
understanding why NAAE is so concerned about the adverse impact
of these regulations upon U.S. agriculture.
How has CBP precipitated this 40-percent decline? Well, it
has consciously ignored the agriculture mission component of
its overall mission. This is the principal mission of the
Agriculture Specialists and Technicians. It has also done so by
consciously disregarding the rights of Agriculture Specialists
as valued employees. Unlike the Legacy Customs and Legacy
Immigration colleagues with whom they work, the CBP Agriculture
Specialists are college graduates with degrees in the
biological sciences. Many have graduate degrees in the
sciences. They are trained and experienced in detecting and
eradicating plant and animal pests and diseases that threaten
American agriculture. They are not law enforcement officers.
They do not have arrest powers. They do not carry a gun. They
are simply trained to detect pests and diseases that are likely
to enter this country. And yet CBP in a proceeding pending
before FLRA is challenging the status of these employees as
professional employees. Why the decline has occurred in the
past 2 years? Morale has been driven to a breaking point. And
these CBP Agriculture Specialists in particular have responded
by walking. They have bailed out of CBP at an alarming rate,
quitting. Many of them have gone back to USDA and Animal and
Plant Health Inspection Service where the agriculture mission
is alive and well.
The new DHS regulations codify in effect this unilateral
power that CBP management already exercises over the Legacy
Agriculture employees' rights and conditions of employment.
These regulations as a practical matter eliminate negotiation
rights and deprive third-party review boards of the power to
mitigate. They install pay-for-performance schemes in which top
performers are not assured of appropriate rewards for excellent
performance.
The regs virtually promise to widen the gap between the CBP
staffing levels needed to protect American agriculture and
those achievable under the personnel system. This threat to
American agriculture is not theoretical. It has already led to
unprecedented recalls of commodities found to have contained
agriculture infested pests, primarily the long-horned beetle. I
have detailed those recalls in my written testimony, and yet
today--yesterday an APHIS newsletter reported another major
outbreak of the Asian longhorned beetle in New Jersey. This
comes from the solid wood packing material from China, and
basically CBP has almost stopped inspecting for that particular
commodity.
My time is up, and I thank you very much for listening to
our concerns, and we would be happy to answer any questions.
Senator Voinovich. Thank you very much.
All of you have been very critical of these regulations. Is
there anything good? If you are not willing to share any
thoughts on what is good, please discuss where the Department
has been responsive to your concerns. There have been some
changes in the regulations, and I mentioned several of them in
my opening statement. The most important thing that I am
interested in is whether there is any consensus on two or three
reforms that could really make a significant difference for the
new personnel system? I have heard from all sides concerns
about retention and recruiting. Second, I have heard concerns
that once people are hired, we may lose them because of reduced
collective bargaining rights.
Ms. Kelley, I would like to start out with you.
Ms. Kelley. I would definitely say and acknowledge, as I
have, that there are changes that were made as a result of the
2 years we spent working with the Department and with OPM. You
listed some of those. Some of them were listed by DHS and OPM.
And we have acknowledged those.
The problem is that at the core of the collective
bargaining issue, that language has been gutted and just
precludes union involvement on issues critical to the employees
who we represent.
I would say that there definitely were changes made that
were positive as a result of our involvement, and if for no
other reason, that was definitely worth it. It is very
disappointing, though, that they did not listen to the very
real solutions that we provided.
For example, even in the comments that you made, Mr.
Chairman, about if anything was going to last more than 60
days, they had an obligation to bargain. That will rarely be
the case because things as I described about shift assignments
and selecting shifts and work assignments that today employees
have a process that has rhyme and reason to it because of the
negotiated system, that will not be required to be negotiated,
even though it will last more than 60 days because the
regulations define it as routine operational matters. And if
the Department says it is a routine operational matter, they
have no obligation to bargain regardless of how long it lasts.
And we believe that the language in these regulations was
written as it was in order to ensure that there are very narrow
and limited situations where they have to engage the unions at
all. That is the clear intent of the language of these
regulations, and it should not be that way.
Senator Voinovich. In terms of shift assignments, is that
in the collective bargaining agreement?
Ms. Kelley. It is.
Senator Voinovich. For example, the longer you work for an
agency, the more flexibility you have in terms of picking the
shifts?
Ms. Kelley. It would abrogate it. It would eliminate any
negotiations of a process, and it would be up to management to
unilaterally decide who would work and when, with no
expectation on the part of employees that there will ever be an
opportunity for that to change or for them to raise their hand
and say I need to do this, I have a working spouse, I am a
single parent, whatever. And there are processes today that
allow employees to have that volunteer process. They were all
negotiated and they work. For the Department to say that they
get in the way of them delivering on their mission is just
disingenuous.
Senator Voinovich. Any other comments on changes to
regulation would make a difference? I have got to be frank with
you. Passing legislation is not going to be easy because the
Administration will object to it. Furthermore for Congress,
this is a political issue over which two campaigns were fought.
Is it possible for you to get together and develop changes
you think will make a difference for us to evaluate. The issue
is what can we do that will make a difference for your
membership and allow the Department to move forward? You have a
lawsuit filed and I do not know how long it will take for that
to be resolved. Has the Court granted an injunction preventing
implementation?
Ms. Kelley. We are asking for that, but I would say the
issue of pay, Chairman Voinovich, is one where a lot of the
decisions have not been made. I know no more about the pay
system they want to put in place today than I did a year ago,
even though there have been constant communications about----
Senator Voinovich. You are talking about the pay-for-
performance?
Ms. Kelley. Yes, pay-for-performance, performance
management system, the whole compensation system. The last
conversation I had with Secretary Ridge on his last day as the
Secretary was on the issue of our future involvement in helping
to develop a system that is fair, credible, and transparent. So
that opportunity is still there before us, and NTEU is looking
forward to the opportunity to really have----
Senator Voinovich. So that is an action management may
take.
Ms. Kelley. Yes.
Senator Voinovich. There are a series of things that
management could do to respond to many of your concerns without
additional legislation. It is important for us to know what
those things are as well so that we can bring to bear on them
through oversight things that facilitate participation. Next,
there are areas where we need to continue with strong oversight
to make sure the new personnel system is implemented
successfully.
Mr. Gage. Senator, one of the things that I liked that we
convinced them to do was to go slow on the pay. The Agency is
still--``growing pains'' is saying it----
Senator Voinovich. Yes, the challenge is merging 180,000
people. Mr. Mann, I am going to check into what you are saying.
I am very concerned about losing good people. One of the most
important people in this whole process--who I met her out in
the hall--is retiring after 37 years. I became involved with
Federal workforce issues 6 years ago because I was concerned
about the looming human capital crisis. This was the year that
70 percent of our Senior Executive Service would be eligible to
retire.
Mr. Gage, I am sorry. I interrupted you.
Mr. Gage. Well, I was just going to make the point that I
think that dropping this new personnel system and new pay on
the Department of Homeland Security of all departments is
really going to be a challenge. I have just great apprehension
about what this type of system will do in law enforcement. It
has never been shown to work in law enforcement. And I hear the
human resource types talk about how they are going to be able
to make this thing so far and objective, and I have been
hearing that for years. But I am really concerned on that side
that so many resources are going to go into the development of
this system and into these personnel changes, and they would be
much better spent for front-line employees and more people out
there doing the job of homeland security.
Senator Voinovich. Thank you. I want to make one point. I
am beyond my 3 minutes here, but, Mr. Perkinson, I was really
interested in your comments. You are more open than some of the
other panelists here about this new system. To me that is
important because it is your people who are going to be really
involved in this.
Mr. Perkinson. Exactly.
Senator Voinovich. I really want you to know that I want to
hear from you. I have been through this. I did this when I was
mayor. I did this when I was Governor, and this is not easy. So
you are very important here. Your members must be trained
because they will influence how the system works.
Would anybody like to comment? I have taken more time than
I should.
Mr. Mann. Mr. Chairman, if I could just follow up, I agree
with Colleen Kelley and John Gage that pay is probably the most
important ingredient, the one thing that we could do something
about. Obviously, our people would like to be treated as the
professionals they are, but I do not think we can legislate or
regulate that to happen. But that is part of our problem. Pay
is the other part.
If they do not have a pay system that is fair and
transparent--and by transparent, what I mean is one that is
easy to understand by the employees it is intended to
compensate the overall system is bound to fail. I have listened
to the explanations that OPM and DHS staff have given as to
what this pay system might look like. And I do not understand
it myself, and I listened over and over again, and I think they
had some rocket scientists in there trying to explain it to us,
and they could not either. I am afraid that at the end of the
day, that system is not going to be comprehended by the average
person.
I am also concerned that the Agriculture Specialists and
Technicians who are excellent performers are not going to be
assured of any meaningful reward for that top performance.
Senator Voinovich. Well, can I make a suggestion to you?
Mr. Mann. Yes.
Senator Voinovich. If I were you, I would get a hold of
David Walker and see what he has done in the Government
Accountability Office. Their system is working, so it may
provide a benchmark.
Mr. Mann. I heard his remarks, and I took note of that as
well.
Senator Voinovich. What we are looking for here are
benchmarks, exisiting systems for us to consider. They said
there are 70,000 Federal employees that are involved in
alternative personnel systems. I think maybe we need to talk to
them.
Again, thank you very much for your testimony here today.
Senator Akaka.
Senator Akaka. Thank you very much, Mr. Chairman.
Taking it from the Chairman here, when he mentioned the
lawsuit, in thinking back I think believe this is the first
time unions have coordinated their efforts and filed a lawsuit
against the government. And so I would like to ask a question
to all of you about the lawsuit that was filed to stop the
implementation of the DHS personnel regulations.
I am interested in several of the issues raised in the
filing, and I know there are many details that we can touch on,
but I think your filing of the lawsuit and the reasons you did
it are the basis of the problem. So I would ask each of you to
elaborate just on the arguments made in the lawsuit, especially
discussing judicial review and the limitations of independent,
quasi-judicial agencies mandated by the regulations. I think
these are important issues that will give us an idea of where
you are and why you are doing this.
Let's start with Mr. Perkinson on this. Will you elaborate
on your arguments?
Mr. Perkinson. I cannot elaborate on the lawsuit for you,
Senator, but I will go to Ms. Kelley for that.
Ms. Kelley. The lawsuit is focused on the collective
bargaining and on the appeals issues. I would note that there
is no subject in the lawsuit that affects the pay-for-
performance or compensation system today, perhaps in large part
because we do not know a lot about it yet, but the lawsuit is
only aimed at where we see the shortfalls in the collective
bargaining and the appeals. And we believe they are in conflict
with other statutes.
On the appeals issues, I guess the way I would explain it
is that everything that the Department has set up in these
regulations allows for internal review by the Department rather
than outside review, as exists today for other Federal
employees. And we believe that is wrong, first and foremost.
Second of all, it incorporates the FLRA and the MSPB into
their regulatory processes, but defines their roles differently
than those organizations. Those agencies have their own roles
today defined by statute. The FLRA has its authority under
statute. The MSPB has its authority. And these regulations
choose to take those two agencies and narrow what it is they
can do in the realm of the Department of Homeland Security. And
we believe that they don't have the authority to do that. So
that is what that part of the lawsuit is about.
And as to collective bargaining, this Congress, the
Congress that passed the Homeland Security Act, made it very
clear that its intent was that collective bargaining would
continue and those rights would continue for employees within
the Department. And if you look at the language in these
regulations, that does not comply with the intent of Congress,
in our opinion, because it so narrowly restricts and in many
cases eliminates those rights, that it is not collective
bargaining as is defined in the law today.
Senator Akaka. Mr. Gage.
Mr. Gage. I would just like to make two points. The
mitigation of penalties is over the top where an arbitrator or
an MSPB examiner cannot mitigate a penalty.
The second thing is on collective bargaining, and I heard
Dr. Sanders here talk about how the union could stop
implementation of a management initiative or a management
exercise, and that is just not true. But the objections of the
agencies to collective bargaining were on process, and we
should have addressed it on how fast we can do bargaining, how
management can set up a date when they had to act and they
could complete their obligations to talk to employees before
then. But to say that, well, sometimes this process went on too
long and even though the unions have put up proposals to really
shorten it, we think we will just take the right away
altogether, and that is what we are concerned about, and that
is why we are pursuing this in the courts as well as every
other forum. It is just wrong to take away rights when the
process could be fixed.
Senator Akaka. Mr. Brown.
Mr. Brown. Yes, my esteemed colleagues here stated it quite
clearly. I am not going to go on about that. But you have to
understand that our membership lives by a collective bargaining
agreement. It defines their work rules, or part of them,
anyway, a good majority of them. And one of the previous panel
members stated, well, what if we had to have practice to defend
the homeland, we had to do this, we had to do that? What would
make better sense than regulations, i.e., a collective
bargaining agreement where verbiage is such that everyone knows
what they have to live by, that it would not impede the
implementation because it would have already been dealt with
and everyone would have known the parameters which they would
work under and how that would affect them on the job?
If you lose your voice in the workplace and do it because I
said so and no other rationale, you will never have an employee
workforce in any part of this country with the commitment that
you have today. Thank you.
Senator Akaka. Mr. Mann.
Mr. Mann. Senator Akaka, NAAE was not a primary architect
of that complaint. We fully support it and we support its
objectives. But as a lawyer, one of the things that intrigued
me personally about the complaint is the attack upon the
impermissible delegation of authority that DHS made in those
regulations to MSPB and to FLRA. DHS does not have the
authority to do that. It not only attempted to delegate
authority, it also attempted to control the procedures and the
protocol by which that authority would be used. So that
delegation provision in the DHS regulations is something that I
think really deserves to be reversed.
Senator Akaka. Mr. Chairman, if you would permit me, may I
ask a question of Mr. Perkinson?
Senator Voinovich. Yes.
Senator Akaka. I strongly believe that for there to be any
degree of success in carrying out the regulations, there must
be continuous training--and the Chairman alluded to training--
on the implementation of the new human resources system at DHS.
Will you please describe the training Federal Managers members
routinely receive on measuring performance and disciplining
employees under the current system?
Mr. Perkinson. One of our concerns, Senator, has been that
under the current system, when it comes to grading performance,
of course, with us going to the pass/fail system of
performance, there is not extensive training on how we approach
that type of system. Most of our agencies that we deal with
have gone to pass/fail so there is not an extensive effort.
Where our concerns come from the Federal Managers
Association is that with the move to pay-for-performance, we
have to have transparency in some form of set pre-standards
that the employee as well as the manager know what they are
being measured against. That is going to be the difficulty. And
when we look at Department of Homeland Security alone, we are
looking at 22 disparate agencies that came together under one
roof, and they all do not do the same type of work. So those
measured performance levels that we would go measure people by
in order to ensure that we are fair when we do pay-for-
performance on the manager level is going to be very difficult,
and it will take a lot more extensive training in the pay-for-
performance area than we presently receive.
Senator Akaka. If costs were not the issue, what further
training would benefit managers?
Mr. Perkinson. I think managers would need to have some
type of understanding on how to rate personnel on an equitable
basis, that we have to have a system in place and we have to
have the measures in place, performance-based standards set for
an employee when we sit down at the beginning of the year and
say these are our expectations, not to steal a line from Mr.
Covey, but win-win agreements or those types of things where
you sit down with an employee. At our senior management level
at some agencies, we have gone to win-win agreements where you
know what your expectations are, and if you achieve them, those
things will get you to the point where you receive your pay.
Now, I think when we go to pay banding and those type of
things, it is going to be even more complicated to the point of
how you determine your No. 10 player versus your No. 1 player.
And those are the things--that is going to be a difficult and
challenging task for a first-line manager to have to execute in
the workplace.
Senator Akaka. Thank you, everyone. Thank you, Mr.
Chairman.
Senator Voinovich. Thank you.
Again, I want to thank all of you. I assure you that this
is not the last of our oversight hearings on the implementation
of these regulations. I would like you to collectively get
together and come back with a consensus on what changes would
make the biggest difference for the new personnel system.
Again, I want to emphasize that this is really important.
The biggest threat we have in our country today will be tackled
by this Department. We have to work together to make sure that
we are secure.
Thank you.
[Whereupon, at 12:32 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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<all>