[Senate Hearing 110-115]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-115
 
        A REVIEW OF THE TRANSPORTATION SECURITY ADMINISTRATION 
                            PERSONNEL SYSTEM
=======================================================================

                                HEARING

                               before the

                  OVERSIGHT OF GOVERNMENT MANAGEMENT,
                THE FEDERAL WORKFORCE, AND THE DISTRICT
                        OF COLUMBIA SUBCOMMITTEE

                                 of the

                              COMMITTEE ON
                         HOMELAND SECURITY AND
                          GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 5, 2007

                               __________

        Available via http://www.access.gpo.gov/congress/senate

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs



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33-877 PDF                 WASHINGTON DC:  2007
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        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas              NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
BARACK OBAMA, Illinois               PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri           JOHN WARNER, Virginia
JON TESTER, Montana                  JOHN E. SUNUNU, New Hampshire

                  Michael L. Alexander, Staff Director
              Brandon L. Milhorn, Minority Staff Director
                  Trina Driessnack Tyrer, Chief Clerk


 SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE 
                          DISTRICT OF COLUMBIA

                   DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan                 GEORGE V. VOINOVICH, Ohio
THOMAS R. CARPER, Delaware           TED STEVENS, Alaska
MARK L. PRYOR, Arkansas              TOM COBURN, Oklahoma
MARY L. LANDRIEU, Louisiana          JOHN WARNER, Virginia

                   Richard J. Kessler, Staff Director
             Jennifer A. Hemingway, Minority Staff Director
                      Emily Marthaler, Chief Clerk


                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Akaka................................................     1
    Senator Voinovich............................................     3
    Senator Coburn...............................................     5
    Senator Collins..............................................     5
    Senator Warner...............................................     6

                               WITNESSES
                         Monday, March 5, 2007

Kip Hawley, Assistant Secretary/Administrator, Transportation 
  Security Administration, U.S. Department of Homeland Security..     7
John Gage, National President, American Federation of Government 
  Employees......................................................    24

                     Alphabetical List of Witnesses

Gage, John:
    Testimony....................................................    24
    Prepared statement...........................................    83
    Responses to questions for the Record........................    93
Hawley, Kip:
    Testimony....................................................     7
    Prepared statement...........................................    35
    Responses to questions for the Record........................    41

                                APPENDIX

Charts submitted for the Record..................................    95
Letter to President Bush from Senators concerning S. 4...........   100
Colleen M. Kelley, NTEU National President, prepared statement...   102
Letter to Senator Akaka from Art Gordon, National President, 
  Federal Law Enforcement Officers Association, dated March 2, 
  2007...........................................................   110
Article from the Washington Post, March 5, 2007..................   111


                     A REVIEW OF THE TRANSPORTATION



                        SECURITY ADMINISTRATION



                            PERSONNEL SYSTEM

                              ----------                              


                         MONDAY, MARCH 5, 2007

                                   U.S. Senate,    
              Subcommittee on Oversight of Government      
                     Management, the Federal Workforce,    
                            and the District of Columbia,  
                      of the Committee on Homeland Security
                                        and Governmental Affairs,  
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Daniel K. 
Akaka, Chairman of the Subcommittee, presiding.
    Present: Senators Akaka, Voinovich, Coburn, Warner, and 
Collins (ex officio).

              OPENING STATEMENT OF CHAIRMAN AKAKA

    Chairman Akaka. This hearing of this Subcommittee on 
Oversight of Government Management, the Federal Workforce, and 
the District of Columbia will come to order.
    We are here today to discuss the personnel system for 
Transportation Security Officers at the Transportation Security 
Administration (TSA). I am very pleased to welcome TSA 
Administrator Kip Hawley and the President of the American 
Federation of Government Employees, John Gage, to the 
Subcommittee.
    TSA was created in response to the attacks of September 11, 
2001, when terrorists hijacked four planes, crashing two into 
the World Trade Center, one into the Pentagon, and another in a 
field in Pennsylvania. That terrible day was a wake-up call for 
America to increase our security efforts and ensure that such 
attacks never happen again. To secure the aviation industry, 
Congress passed the Aviation and Transportation Security Act 
(ATSA), which, among other things, created the Transportation 
Security Administration and federalized the aviation screening 
workforce.
    In designing the TSA, the Act required the TSA to follow 
the personnel system for the Federal Aviation Administration. 
However, the agency was allowed to employ, appoint, discipline, 
terminate, and fix the compensation terms and conditions of 
employment for the TSOs without regard to other laws. A year 
later, Congress passed the Homeland Security Act to merge 22 
agencies, including TSA, into a Department of Homeland Security 
in an effort to improve the Federal Government's ability to 
prevent and respond to terrorist attacks.
    The Homeland Security Act also provided broad personnel 
flexibility to DHS in order to quickly respond to threats and 
ensure that the Secretary had the flexibility to move resources 
as needed. However, the Act provided that DHS employees would 
have an independent and fair appeals process, full 
whistleblower rights, and collective bargaining. TSA was not 
included in this personnel system, and as a result, TSOs are 
left without many of the statutory protections in place for DHS 
employees. In my opinion, a lack of employee rights and 
protections has resulted in TSA facing high attrition rates, 
high numbers of workers' compensation claims, and low employee 
morale.
    Without a fair process to bring whistleblower complaints, 
employees are constrained in coming forward to disclose 
problems leading to worker injuries or, more importantly, 
vulnerabilities to national security. Without collective 
bargaining, employees have no voice in their working 
conditions, which could drastically reduce attrition rates.
    TSA has made improvements in managing the screening 
workforce, but we must build upon these efforts and give 
employees a real place at the table. Protecting employees from 
retaliatory action complements efforts to secure our Nation. 
Strong employee rights and protections ensure that we have a 
screener workforce focused on their mission and not preoccupied 
by fear of retaliatory treatment by management.
    On January 9, 2007, the House of Representatives passed 
H.R. 1 to implement the recommendations of the 9/11 Commission. 
On February 17, the Homeland Security and Governmental Affairs 
Committee reported out the Senate companion, S. 4. Both bills 
contain provisions to require the Secretary of DHS to place TSA 
under either the FAA or the DHS personnel system. Today's 
hearing will provide an opportunity to gather the facts on the 
need for the proposal, as well as how such a proposal, if 
passed, could be implemented. I believe it is time to ensure 
that TSA screeners are provided the same rights and protections 
as all other employees at DHS. I also believe that by denying 
TSA screeners the same rights provided to other DHS employees, 
we are reinforcing the very stovepipes we sought to tear down 
by consolidating agencies within DHS.
    Before I turn to my good friend over the years and former 
Chairman of this Subcommittee, Senator Voinovich, for any 
opening statement he would like to make, I ask unanimous 
consent that a statement from the National Treasury Employees 
Union and a letter from the Federal Law Enforcement Officers 
Association be included in the record. And I would also like to 
note that both documents are available to the public.\1\
---------------------------------------------------------------------------
    \1\ The prepared statement from the National Treasury Employees 
Union and a letter from the Federal Law Enforcement Officers 
Association appears in the Appendix on pages 102 and 110 respectively.
---------------------------------------------------------------------------
    Senator Akaka. Sentor Voinovich.

             OPENING STATEMENT OF SENATOR VOINOVICH

    Senator Voinovich. Thank you, Senator Akaka. I really 
appreciate you holding this hearing today. You and I have 
worked together for many years to ensure the Federal Government 
has the ability to put the right people in the right place with 
the right knowledge and skills at the right time.
    I would like to remind everyone of the great debate on TSA 
over whether screeners should be Federal or private sector 
employees. I can remember being at meetings with some of my 
colleagues on the Republican side where they indicated that 
they thought the government should not employ screeners. I told 
them I would take my Cleveland police or my State patrol and 
put them up against any people in the private sector. As 
everyone knows, screeners are Federal employees, and thousands 
were hired in less than a year to stand up the agency.
    Now, during this Committee's markup to consider the 9/11 
bill, an amendment was adopted that would eliminate the 
Transportation Security Administration's authority to develop 
and manage an independent personnel system. At that time, I 
think I observed that we had not even had a hearing. So again, 
Senator Akaka, I appreciate you having this hearing today.
    I have an opportunity to meet and talk with TSA screeners 
almost twice a week. In fact, I get patted down every week, and 
I have told them I could teach them how to do it. These 
screeners are hard-working, dedicated Americans with the 
immense responsibility of keeping air travelers safe. They are 
to be commended for their work, and I would like to extend a 
special welcome to the TSA screeners who work at Cleveland 
Hopkins International Airport: Joseph Gattarello and Karen 
Budnik, who are in attendance today.
    The September 11, 2001, attacks revealed numerous 
shortcomings in our Nation's capacity to detect potential 
terrorist threats and respond effectively. In response, 
Congress enacted a number of reforms designed to address 
current and future national security threats, including the 
creation of TSA.
    Since its creation, TSA has been subjected to several 
reorganizations, both congressional and executive. TSA was 
originally housed in the Department of Transportation and was 
tasked with hiring 55,000 screeners within 1 year. What an 
enormous task. This problem was complicated by the fact that 
the traditional employment pool from which TSA had to hire, 
those previously conducting airport screening, had attrition 
rates of 125 to 400 percent. That was another reason why I did 
not think it made any sense to let the private sector continue 
to be responsible for screening.
    In 2003, TSA was transferred to the Department of Homeland 
Security. Along the way, TSA has faced many hurdles in its 
attempt to transform itself into a high-performing, robust 
organization. Personnel challenges are at the top of this list, 
whether they be attrition of part-time workers, on-the-job 
injuries, or the need to appropriately reward employees. Many 
are concerned that creating another new personnel system at 
this point would further hinder TSA's progress, admittedly less 
than desired in some cases, in overcoming the challenges it 
faced when it opened its doors.
    Last August, information of one of the most serious threats 
to our homeland was shared with TSA. Just hours prior to the 
public announcement, TSA made and finalized the most 
fundamental change in airport security since September 11. That 
changed was finished by senior officials at 2:21 a.m. on August 
10. The new security measures prohibited bringing any liquid, 
gels, or aerosols onto an airplane. At 4 a.m., when 
Transportation Security Officers arrived for the first shifts 
on the East Coast, they were briefed and trained on the new 
security procedures, which they then implemented immediately 
upon opening the first security checkpoints. It was the most 
magnificent change in airport security since September 11, and 
it all happened in less than 6 hours from the time of the 
arrest of the alleged terrorist in the United Kingdom.
    Hypothetically speaking, if TSA were subject to collective 
bargaining as proposed by S. 4, it may have had to go through 
the process of declaring an emergency prior to taking action 
necessary to carry out its mission. I think we all agree that 
the thwarted terrorist plot against U.S. air carriers was 
indeed an emergency. We understand that. Under other 
circumstances, however, whether and when the statutory 
definition of an emergency situation would be applicable to TSA 
is unclear. Even a minor snowstorm can wreak havoc on our air 
transportation systems, requiring TSA to work in concert with 
the airlines to accommodate the resulting spikes in passenger 
volume.
    Under current law, TSA has the flexibility to reassign 
personnel on a real-time basis in response to any situation. 
Under S. 4, would TSA have to declare the minor snowstorm an 
emergency in order to immediately reassign its personnel?
    One of the things that I learned firsthand as mayor, and 
then governor, is that there is always room for improvement in 
human capital management. Accordingly, I understand the reason 
for the proposal in the underlying bill. It may well make sense 
for Congress to enact legislation providing TSA employees with 
the right to appeal adverse actions before the Merit Systems 
Protection Board and to seek protection for whistleblower 
claims with the Office of Special Counsel. However, it is 
important to note that the existing agreement for the review of 
whistleblower claims is an example of how TSA has responded to 
the needs of its employees. The statutory ability to appeal to 
the MSPB and OSC could be an important safeguard for screeners 
to help ensure due process.
    The proposal in S. 4 is well intended; however, I am 
concerned that Congress has not fully considered its impact and 
the need to balance the changes that would be required against 
the potential disruption to our air transportation security 
system.
    I am committed to working with my colleagues to continue to 
improve TSA. Although much work remains to be done, the 
progress made to date on certain issues, such as the reduction 
in worksite injuries, is encouraging. More importantly, I think 
it reflects the sincere desire on the agency's part to take any 
steps necessary to create a good working environment for its 
employees. I hope that we can find a workable solution that 
strikes the right balance between promoting a flexible system 
and protecting the rights of individuals who choose to serve as 
screeners. I look forward to learning from our witnesses how 
this can best be accomplished.
    Thank you.
    Chairman Akaka. Thank you very much, Senator Voinovich.
    I am so glad we have other Subcommittee Members here. I 
would like to call on Senator Coburn for any statement he would 
like to make.

              OPENING STATEMENT OF SENATOR COBURN

    Senator Coburn. Thank you, Senator Akaka. I appreciate you 
having this hearing.
    I think this hearing is about 3 months late. This is 
already part of the bill. It has already had an amendment on 
the floor. And the American public should be disgusted with the 
process. No hearings were held on this prior to the Committee 
markup of a major change in the security at airports in this 
country. None. That is us not doing our job properly. And we 
are having this hearing because I specifically made a point 
during the markup that we had not had any hearing on this 
issue.
    The issue is now considered a kind of backdraft solution 
because it does not matter what we find here today. The bill is 
on the floor. It is already part of the bill. And the President 
has already said he will veto the bill if this is in it. So we 
could have crafted legislation to more favorably impact TSA 
employees had we had a hearing long before we had a rush markup 
on a 9/11 bill.
    I look forward to hearing the very real needs of the 
Transportation Security employees in this country and looking 
at how we address those and finding what is best for the 
government, good for them, good for the traveling public, and 
the security of this country. Doing this after the fact, 
although I am very appreciative that it is happening, I think 
says a whole lot about how the Senate operates. And it is not 
unusual that we do things this way, and the American public 
ought to demand a change. And this is in no way to reflect on 
Senator Akaka. Senator Akaka recognizes that this bill was 
rushed. It is a leadership bill. It was told to get out, and so 
it came through.
    So I am not upset with Senator Akaka at all. I am very 
pleased that he is having this hearing. But I think this type 
of action just shows the American public that what we are up to 
is politics and not good policy.
    Thank you.
    Chairman Akaka. Thank you. Senator Warner.
    Senator Warner. Thank you, Mr. Chairman.
    Mr. Chairman, as a courtesy, I would like to yield my place 
to the distinguished Ranking Member of the full Committee, and 
then I will follow.
    Chairman Akaka. Thank you very much, Senator Warner. 
Senator Collins.

              OPENING STATEMENT OF SENATOR COLLINS

    Senator Collins. Thank you very much, Senator Akaka, and 
thanks to my distinguished colleague from Virginia.
    I very much appreciate, Senator Akaka, that you and Senator 
Voinovich are holding this much needed hearing. It is an 
opportunity for us to grapple with a very important issue. 
Throughout our Committee's work on homeland security, it has 
become clear that the ability to respond quickly and 
effectively to changing conditions, to emerging threats, and to 
new intelligence is essential. From the intelligence community 
to our first responders, the key to this effective response is 
the flexibility to put assets and, most important, personnel 
where they are needed when they are needed.
    We have to figure out how we can maintain this needed 
flexibility while at the same time ensuring protections for the 
employees who are working so hard to safeguard our Nation. It 
is my hope that this hearing will help both sides of this issue 
reach across the aisle and stop trying to score political 
points and instead work together to find a middle ground. And I 
think, Mr. Chairman, that there is a middle ground in this 
area. I have been working with some of my colleagues to see if 
we can come up with legislation that would bring TSA employees 
under the Whistleblower Protections Act--that makes sense--but 
also allow appeal to the Merit Systems Protection Board of 
adverse actions such as demotions or firings.
    It seems to me that these are important employee rights 
that we can extend to TSA, and then we should take the next 
year to more thoroughly study the personnel system to get GAO 
involved, to get the employees involved, to get the employee 
representatives involved, and to work with the Department to 
see if there is more that we can do. Just as we strive to 
protect our Nation and our people without diminishing civil 
liberties, we must do all that we can to build a strong 
homeland security structure that upholds the rights of the 
personnel who strive so hard to protect us.
    I hope that we will work to try to achieve this middle 
ground to give the flexibility that TSA does need, and it has 
proven that as recently as last summer when the thwarted 
airliner plot required the redeployment of personnel.
    So, Mr. Chairman, my plea to everybody here, as well as to 
our colleagues on both sides of the aisle, is let's sit down, 
let's take some steps that we can take now without impeding 
TSA's flexibility while enhancing the employees' rights.
    Thank you, Mr. Chairman.
    Chairman Akaka. Thank you very much, Senator Collins.
    Senator Warner, thank you for your courtesy. You may now 
proceed with your statement.

              OPENING STATEMENT OF SENATOR WARNER

    Senator Warner. Thank you, Chairman Akaka. I would like to 
associate myself with colleagues here who have indicated that 
we will try and seek to work this out. I have been privileged 
here in the Senate for 29 years as a member of this Senate, and 
on behalf of Virginia, to work with many Federal employee 
organizations. And I will carefully follow and participate in 
trying to come to a middle-ground situation.
    In fairness to those who are present here today at this 
open public hearing, I think our record should reflect that we 
had a classified briefing from the intelligence community. This 
witness before us today, Mr. Hawley, was the principal briefer. 
But there were very compelling points to that meeting, and I am 
hopeful that somehow, without compromising any sources, 
methods, or otherwise, the Chair and the Ranking Member can 
figure out how best to deal with that intelligence component in 
such a way that the persons who are advocates here today on 
behalf of their employees feel that they have as broad an 
understanding of the reason why certain Senators are making 
this position and why the President probably is influenced by 
that intelligence quotient to this important subject in 
announcing the veto.
    Also, I would like to put in the public record this letter 
which 35 Senators, including myself, have signed on behalf of 
the President, setting forth our concerns regarding this piece 
of legislation and his representation, the President's 
representation that it is so serious that he would consider the 
veto, exercise of the veto.\1\
---------------------------------------------------------------------------
    \1\ The letter referred to appears in the Appendix on page 100.
---------------------------------------------------------------------------
    Chairman Akaka. It will be included in the record. Thank 
you very much, Senator Warner.
    At this time I want to again welcome Assistant Secretary 
Kip Hawley, the Administrator of TSA.
    I ask for you to stand with me and raise your right hand as 
it is the custom of this Subcommittee to swear in all 
witnesses. Do you solemnly swear that the testimony you are 
about to give to this Subcommittee is the truth, the whole 
truth, and nothing but the truth, so help you, God?
    Mr. Hawley. I do.
    Chairman Akaka. Thank you. Although statements are limited 
to 5 minutes, I want both our witnesses to know that their 
entire statements will be included in the record.
    Mr. Hawley, please proceed with your statement.

TESTIMONY OF KIP HAWLEY,\2\ ASSISTANT SECRETARY/ADMINISTRATOR, 
  TRANSPORTATION SECURITY ADMINISTRATION, U.S. DEPARTMENT OF 
                       HOMELAND SECURITY

    Mr. Hawley. Thank you very much. Good afternoon, Mr. 
Chairman, Senator Voinovich, Senator Collins, and Members of 
the Subcommittee. I have submitted testimony for the record, 
but since time is short, I would like to get right to the 
point.
---------------------------------------------------------------------------
    \2\ The prepared statement of Mr. Hawley appears in the appendix on 
page 35.
---------------------------------------------------------------------------
    This issue has been around for a while in the human capital 
scenario, and feelings run very deep. But the commitment to the 
mission that TSA has I think is one that we all agree on, and I 
know our outstanding workforce of TSOs, whatever their opinions 
on this personally, we are all united on the importance of the 
mission. And one of the gratifying things of this current 
debate is the widespread recognition of the Transportation 
Security Officer as a critical piece of our security.
    And so I respect the opinions and I respect those who offer 
them that think collective bargaining is the way we should go. 
But I have to say that there will be a serious negative 
security impact if the labor provision adopted by the Committee 
or the alternative pending amendment become law.
    Both proposals would dismantle the innovative human capital 
authorities given to TSA by Congress after September 11 and 
replace it with a pre-September 11 personnel system that is 
unsuited to TSA's real-time security mission. While the human 
capital issues are significant, the security issues are urgent 
and must be addressed first.
    TSA operates in a real-time, high-intensity environment 
where seconds matter and the stakes could not be higher. We 
count on our TSOs, among other things, to deter and stop an 
attack that may be in preparation or in progress. Our people 
face these scenarios at over 400 airports across the Nation 
every day. In this world, the so-called dots referred to by the 
9/11 Commission are not obvious, and connecting them in time is 
not assured. When the safety of the public is on the line, 
taking an old solution and putting a new cover on it and then 
making it law without full examination can have alarming, 
unintended consequences in the real world. That is the case 
with these provisions and why I must speak out clearly about 
the uncomfortable reality of increased risk brought on by them. 
As Senator Warner mentioned, I briefed Senators last week on 
classified specifics of these concerns.
    In a bill that uses the name of the 9/11 Commission, 
security must come first. It does come first at TSA, and all of 
the improvements we have implemented in the last 18 months is 
an additional measure that has been instituted at TSA. I have 
put up a chart that indicates each one of those highlighted 
items.\1\ These improvements have been implemented for our 
workforce, and they acknowledge the capability we already have 
in our TSOs, and seek to prepare and engage them as security 
professionals.
---------------------------------------------------------------------------
    \1\ The chart referred to appears in the Appendix on page 96.
---------------------------------------------------------------------------
    As has been mentioned earlier, TSOs reported for work on 
August 10 and, without prior notice, trained for and 
implemented the most extensive security changes rolled out 
since September 11. And TSOs did it in real time, literally 
live on TV. The only way that could happen was that that is 
something that we practice every day at TSA, the ability to 
move fast, to make changes on the fly, and it was because of 
that preparation that we were able to move as fast as that.
    Proponents of collective bargaining for TSOs point out that 
any labor agreement would include provisions for emergencies. 
But it is not just about emergencies. It is about what they do 
every day. TSA's mission requires that its officers be 
proactive, that TSOs constantly change what they do and where 
they do it. They are required to flex to different places in 
the airport to meet suddenly changing security and operating 
needs. A system that sets up outside arbitrators to review 
these constant changes after the fact, without the benefit of 
classified information that explains the rationale, sets up a 
morass of wasted time that detracts from the focus on security. 
Today, if a TSO is not making the grade, that individual can be 
taken off the checkpoint immediately. Under collective 
bargaining, that person could be screening passengers for 
months before the process finally runs its course.\1\
---------------------------------------------------------------------------
    \1\ The chart referred to appears in the Appendix on page 99.
---------------------------------------------------------------------------
    TSOs are tested frequently in the bomb detection skills, 
and those who do better get paid better. We all know that 
incentives drive performance. It does not make sense to drop 
that from a system and then get in place of it one that carves 
out front-line TSOs and eliminates their incentive to excel. 
How does it benefit passenger security to make the TSO not 
accountable for the security outcome?
    We all wish September 11 never happened. We all wish the 
threat of terror would go away. But September 11 happened, and 
we know it did not start in 2001, and it will not end in our 
lifetimes. And that is the uncomfortable truth.
    We know of terrorist interest in attacking the U.S. 
aviation system. We know of attack planning. We know of attack 
training, and we know of terrorist movement, including in our 
direction. That is the uncomfortable truth. Taking our TSOs who 
today flex and adjust to meet real-time needs and force fitting 
them into an old system would have far-reaching, negative 
security consequences. Going backwards to a system that adds 
bargaining, barriers, and bureaucracy to an agency on whom 
travelers depend for their security can be characterized as 
many things, but it does not improve security. And that is the 
uncomfortable truth.
    I thank the Subcommittee, and I would be happy to answer 
questions.
    Chairman Akaka. Thank you very much, Mr. Hawley, for your 
statement.
    Mr. Hawley, the National Labor Relations Board ruled in 
June that private companies which provide screener services at 
our Nation's airports can organize and bargaining collectively 
with their employer. Can you share with us what airports 
utilize private screeners?
    Mr. Hawley. Sure.
    Chairman Akaka. And how many of these airports employ a 
screener workforce that engages in collective bargaining?
    Mr. Hawley. Well, the TSA contract is with a provider, and 
then what the provider's arrangements are with their underlying 
employees is a matter for them to manage. And we have 
performance specifications. San Francisco is the largest where 
there is a unionized workforce, but our relationship is with 
Covenant, and we give them the requirements of things that they 
must perform to. And it does present a bit of a disconnect to 
not have the ability to flex and flow them across, for 
instance, to Oakland or down to San Jose.
    Chairman Akaka. In his written testimony, Mr. Hawley, Mr. 
Gage mentions the collective bargaining agreement between the 
Fraternal Order of Police and the U.S. Capitol Police. This 
agreement took effect a year and a half after September 11, 
2001. The agreement states that the chief of police determines 
if there is an emergency, and then he or she can suspend 
provisions of the agreement as needed to respond to the 
emergency.
    What are the differences between the Capitol Police, which 
protects Members of Congress, their staff, and visitors, and 
TSOs? Why wouldn't such an agreement work for TSA?
    Mr. Hawley. Sir, the job is very different, and the job of 
a TSO is one where you do not know whether you have an 
emergency until it is over. And in the aviation business, that 
is too late. I will give you an example.
    Suppose you have two buses pull up outside the terminal and 
400 people come off and come to your checkpoint. Is that just a 
traffic jam? Or are those several hundred people coming there 
to rush your checkpoint? And you just do not know until you 
flex to find out the answer to that and process it. And the 9/
11 Commission report is all about connecting the dots, and you 
have to be able to flex and change up your look and be able to 
move to different places based on an adaptive enemy. And it is 
a very different thing to measure in an emergency like August 
10 versus every day something happens where you do not know if 
it is an emergency. And if you do not treat it seriously and it 
turns up to be an attack instead of a lot of people showing up 
at the same time, that is not doing our job. And so it would 
not work, that arrangement would not work for TSA.
    Chairman Akaka. In a sense, the Capitol Police makes 
similar decisions, and so for that reason, at this point I am 
not seeing the distinction.
    Mr. Hawley. Well, there are 400 airports, and we operate 
virtually around the clock around the country. And it is a 
system that we protect, a network that we protect, and we have 
to be able to--we cannot just take one area and patrol one 
defined area like the Capitol and perform the important 
security needs there. This is a dynamic network that we are 
charged to protect against an enemy who can attack it from 
limitless places.
    Chairman Akaka. Mr. Hawley, I would like to clarify the 
issue of veterans' preference for TSOs.
    Mr. Hawley. Good.
    Chairman Akaka. The ATSA only requires preference for 
veterans who are retired as opposed to the requirements for 
other Federal agencies that cover individuals honorably 
discharged from active duty. It is my understanding, however, 
that as a matter of policy, TSA gives preference to both 
groups. Your chart states that veterans' preference is 
guaranteed and that veterans constitute 26 percent of the TSO 
workforce. However, AFGE disputes those claims.
    Can you tell me what percentage of TSOs are retired from 
the military versus those who are honorably discharged and how 
veterans are able to enforce their rights?
    Mr. Hawley. Sure. Well, it is the whole discussion of the 
appeals process that we have, which is another entire 
discussion. But our veterans' preference is at least equal and 
I believe broader in the sense of the retired folks that get 
veterans' preference on hiring, and we have more--our 
percentage is something like, as you mentioned, 26 percent and 
I think governmentwide it is 25 percent on veterans.
    So we have very close working relationships with veterans, 
and they form a very important part of not only our agency but 
our supply of new folks coming in.
    Chairman Akaka. Mr. Hawley, you mentioned the United 
Kingdom air bombing plot and how as a result TSA changed the 
nature of the screeners' work. I understand that airport 
screeners around the world, including those in the U.K., have 
collective bargaining rights. If U.K. airport screeners can 
bargain, why not TSOs in the United States?
    Mr. Hawley. Well, we ask a great deal of our TSOs, frankly, 
more than any other country. And it is the thinking, judgment, 
and engagement part where we add additional layers: Behavior 
observation, bomb appraisal officers; we are now into document 
verification. We have a lot of the things that you see up here. 
We ask our guys to do a lot more security judgment, and that is 
why in the United States I would stand up our response in the 
United States and what our TSOs did with anybody in the world 
as to how they can quickly enter into a new security regime.
    Chairman Akaka. Before I turn to Senator Voinovich, I want 
to follow up on my first question. You mentioned that screeners 
at the San Francisco airport can bargain. Can you tell me why 
it is OK for private screeners to bargain and not TSOs?
    Mr. Hawley. Well, the relationship that TSA has with the 
sponsoring company, Covenant--and we hold them to a certain 
level of detail. We do not have the ability to share with those 
TSOs some of the things that we are able to share with our 
others, with our own employees.
    Chairman Akaka. Senator Voinovich.
    Senator Voinovich. Thank you, Senator Akaka.
    As you know, I have been a strong advocate for our people 
who work in the Federal Government, and I have a chance to talk 
with them as I travel around the country, especially in 
Cleveland. I would like to know from you how have you used your 
existing flexibilities under the current law to respond to the 
concerns and needs of the people who work in TSA.
    Mr. Hawley. Yes, sir. Those are critical to our success, 
and we use our--we have a pay-for-performance system that we 
have rolled out that operates, that is fully funded, fully 
participated in by our TSOs. That comes because we have the 
ability through these authorities. We also have the ability 
with part-time workers to extend full-time benefits to part-
time workers based on those authorities.
    So those are two critical pieces of our tool kit that we 
use now that would be taken away.
    Senator Voinovich. How about adverse actions and people who 
are unhappy with the way they are being treated? What options 
do they have?
    Mr. Hawley. They have the full gamut. We have an agreement 
with the Office of Special Counsel on the whistleblower side, 
and we have a parallel system to the Merit Systems Protection 
Board, as well as Ombudsman and the whole--we have four or five 
different routes. And it is one of the issues that, as you 
know, we have had discussions about--as something that may be 
worth discussing more legislative remedies in that area, which 
we are happy to pursue.
    Senator Voinovich. Last week, my staff met with a group of 
screeners who believe the decline in EEOC and OSC and injury 
claims has occurred not because of improvements in the working 
conditions but because of fear that they will be fired. How 
would you respond to such concerns?
    Mr. Hawley. Well, there are protections in place, and I 
would urge anybody anywhere at TSA who has a concern like that 
to either go through the Ombudsman or go through some of the 
outside opportunities that there are for investigation of them.
    I think on the injury side, though, the injury reduction 
has been remarkable, and I believe it coincides with some of 
the other things we are talking about in terms of better 
training, upgrading the job, career progression opportunities, 
pay-for-performance. All those things give incentives for 
people to want to work, and as I think you know, we have cut 
our lost workdays in half in the last year.
    Senator Voinovich. When was TSA established?
    Mr. Hawley. November 19, 2002, was the first stand-up date.
    Senator Voinovich. So it will be 5 years this year?
    Mr. Hawley. It will be 5 years, yes.
    Senator Voinovich. Well, it is a major undertaking to stand 
up an agency, especially with the number of people TSA needed. 
So the fact of the matter is that you are still working out 
some kinks in the process.
    Mr. Hawley. Clearly, and the stand-up was notable for the 
speed and the size, but I think some of the earlier employee 
surveys demonstrate these problems. And we did have a high 
attrition. Our injury rates were too high. In fact, when I came 
to this Committee for confirmation, it was one of the top 
issues I mentioned that struck me on coming into the job. And 
we have a chart over there \1\ with the yellow highlighting 
indicates these are all initiatives we rolled out to get at 
those, to put in career progression, to put in pay-for-
performance, put in additional training and additional career 
opportunities.
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    \1\ The chart referred to appears in the Appendix on page 96.
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    Senator Voinovich. You heard the argument that unionized 
screeners in San Francisco, the unionized Border Patrol that 
has not been a problem. One thing that I think has got to be 
clear is that you do have people in TSA that belong to a union.
    Mr. Hawley. They are contractors, and one of the----
    Senator Voinovich. I am talking about people that work for 
TSA.
    Mr. Hawley. Oh, yes. I am sorry. You are right, absolutely.
    Senator Voinovich. People that work for TSA that belong to 
Mr. Gage's union.
    Mr. Hawley. Absolutely. TSOs have the opportunity to join a 
union for representation purposes.
    Senator Voinovich. Right. And the fact of the matter is 
that when you belong to the union, you can collective bargain 
everything but wages. Is that correct?
    Mr. Hawley. Well, not currently at TSA, but under this 
proposal, yes. In other words, we do not have collective 
bargaining.
    Senator Voinovich. Right. But I am referring to other 
organizations like the Border Patrol.
    Mr. Hawley. That is correct. Yes, sir.
    Senator Voinovich. OK. So they can bargain management 
rights and so forth, but not wages.
    Mr. Hawley. That is correct.
    Senator Voinovich. That is taken care of under separte 
statute.
    Mr. Hawley. I believe so, yes.
    Senator Voinovich. Are there aspects of the personnel 
system that TSA has put into place for its workforce that would 
not be possible if TSA's authority under Section 111(d) of the 
Transportation Act was eliminated?
    Mr. Hawley. Well, I think we mentioned a couple of them, 
with the pay-for-performance that is out there and the 
experience that the Department has had, has struggled for 4 
years trying to roll out a pay-for-performance, and that has 
been blocked at every turn. We are the one entity----
    Senator Voinovich. Have you done any employee surveys to 
gauge how people are responding to the pay-for-performance?
    Mr. Hawley. Yes. I think we have seen our--our attrition is 
one area that has dropped. We started out with a retention 
bonus program that came out over the summer and fall, and we 
just put out--about $52 million of the 2006 pay-for-performance 
just went out at the beginning of February. So I think our 
employees have seen us put our money where our mouth is, and 
for the first time, there are permanent pay raises that happen 
at TSA when you excel in your job. And that is a critical piece 
for us moving forward, is to incent our folks so that they are 
leaning forward and looking for threat objects versus, just----
    Senator Voinovich. Do employees get the regular across-the-
board salary adjustment?
    Mr. Hawley. Yes, they get the same--that is a separate 
program.
    Senator Voinovich. Then when the Federal Government 
receives an across the board pay increase TSA employees do 
also. On top of that they can receive an additional raise based 
on performance.
    Mr. Hawley. Exactly. And I should say we also took some of 
the money for the non-TSOs in last year's pot, and I put it in 
the TSO pot to give the TSOs more money. Nobody negotiated 
that.
    Senator Voinovich. And you think that it is working and 
that for the most part the employees are happy with it?
    Mr. Hawley. Absolutely.
    Senator Voinovich. And you could not do that under the 
collective bargaining?
    Mr. Hawley. Correct.
    Senator Voinovich. My time is up, Senator.
    Chairman Akaka. Thank you very much, Senator Voinovich. 
Senator Coburn.
    Senator Coburn. Let me make sure I understand correctly. 
If, in fact, what is on the floor today goes through and 
becomes law, TSO officers will bargain for everything except 
wages?
    Mr. Hawley. I think functionally that is about right, yes.
    Senator Coburn. And so what is driving--what have been the 
problems that are driving--most of the time, people do not want 
to--if they perceive--they perceive a lack of either input or 
loss.
    Mr. Hawley. Yes.
    Senator Coburn. What is driving this desire for people to 
have a union?
    Mr. Hawley. Well, we have a chart here that we picked out 
the arguments that we have heard and put them up in the green 
on the left, and on the right are examples.\1\ So there are a 
number of issues, and a lot of them are legitimate issues, and 
they are ones that we are working on. And as I mentioned, on 
the other chart, these are things we have had the ability in 
the last year to jump on top of and make changes and implement. 
And I have a very active Employee Advisory Council that meets 
with me, and over 90 percent of our employees are covered by 
these advisory groups. And we are able to move on a dime to 
make these changes. And I would stand that record of work on 
our workforce and enhanced capability for our workforce, 
including permanent pay increases and compensation and training 
and career, all those things rolled out in a year. And if we 
had to go through hiring lawyers and our TSOs hiring lawyers 
and letting them try to negotiate it, that just simply would 
not happen.
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    \1\ The chart referred to appears in the Appendix on page 95.
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    Senator Coburn. So other than wages, the projected cost to 
the TSA if, in fact, this comes into being, have you all 
calculated what the----
    Mr. Hawley. Yes, sir.
    Senator Coburn [continuing]. Projected cost to the Federal 
Government, non-wage costs are to the Federal Government?
    Mr. Hawley. Correct.
    Senator Coburn. Not on the security issues. Just the costs.
    Mr. Hawley. No, the cost to set up a process in which we 
could then engage in collective bargaining we estimate around 
$160 million.
    Senator Coburn. So $160 million.
    Mr. Hawley. Yes, sir.
    Senator Coburn. From your managers and supervisors, is it 
your feeling that TSO employees are desirous of collective 
bargaining?
    Mr. Hawley. I hear, I have a lot of e-mail, I had a 
national kind of electronic town hall last week, and there are 
some who want to give collective bargaining a try, but, 
frankly, there are a lot that I talk to, particularly out in 
person or in e-mails I get, that do not. And I think what they 
are really looking for is performance. They are looking to see 
whether the leadership of TSA puts forward real career 
progression, real pay increases, real training--those things. 
And, in fact, we have and that has resulted in a turnaround, I 
believe, in our employee attitude.
    Senator Coburn. So let me see if I can understand this. 
Union representation for TSO officers will not relate to wages.
    Mr. Hawley. Correct.
    Senator Coburn. But will relate to everything else, and 
everything else in terms of their job is really related to 
security and flexibility of maintaining security. So we have 
over here--we are not going to collective bargain for wages. We 
are going to collectively bargain for all those things that 
might inhibit us to have the greatest safety that we might 
need.
    I do not understand. TSO is out there to protect the 
American public. This is unlike many others. And I would say to 
you that the Border Patrol got collective bargaining through 
the back door, not the front door. It was not anything that we 
passed that allowed it. It was the court that ruled that. And 
the fact is that if you talk to the head of the Border Patrol, 
that at multiple times makes their job much more difficult to 
protect our borders.
    So what we have is we are going to be negotiating the 
flexibility that is required to secure this country on a 
moment's notice, and we are going to have to have a union 
representative OK it. And if, in fact, it is only going to be 
on an emergent basis that you are not going to have to do that, 
then we are going to spend a lot of time after that.
    Won't the tendency then be to have a whole lot more 
emergencies?
    Mr. Hawley. Well, it would not work for us because we 
change frequently to change up the look for anybody watching. 
We also change because the flight schedules of aircraft are 
different, and we cannot predict day to day what is actually 
going to happen. It really goes back to the fundamental 
strategy that the 9/11 Commission talks about, which is the 
connect-the-dots strategy that you cannot predict. They do not 
do you the favor of letting you know ahead of time that they 
are coming.
    And so you have to be quick on your feet. You have to 
evaluate each thing that is happening as ``Is this part of 
something else?'' And then if you want to be--if you are 
concerned about it, you need to be able to move quickly. And it 
just does not allow itself--and I respect the thought, but the 
idea of negotiating when you are at your workstation and when 
you are not at your workstation--because we do not know if 
there is a threat some place we have not predicted, like in 
Cyprus, we have to go there to secure the people flying back to 
the United States.
    So limiting that or trying to explain it afterwards just 
does not work for our business.
    Senator Coburn. There must be a grain of truth to the 
problems on whistleblower. You have a Memorandum of 
Understanding with the Department of Homeland Security that 
says that TSOs, Transportation Security Officers, have access 
to whistleblower protection. Well, if that is the case, why is 
this an issue in this debate?
    Mr. Hawley. Because it could be changed, I guess, and that 
having it in legislation would make it an immovable object, so 
to speak.
    Senator Coburn. Are you familiar with specific complaints 
where people have been whistleblowers and have not had 
protection?
    Mr. Hawley. I am not, no.
    Senator Coburn. All right. My time is just about up.
    Would you discuss again--I was a little bit confused by 
Senator Akaka's question on veterans. As I read the data, you 
actually employ more veterans than almost any other agency. Do 
you seek a preference between retired and non-retired?
    Mr. Hawley. No.
    Senator Coburn. So there is no preference that you go one 
direction or the other?
    Mr. Hawley. No.
    Senator Coburn. I will yield back.
    Chairman Akaka. Thank you very much, Senator Coburn. 
Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    Mr. Hawley, Senator McCaskill has introduced an amendment 
to the Committee-passed bill that is intended to give you more 
flexibility to deal with emergency situations, which many of us 
want you to have that kind of flexibility. Her amendment states 
that the Under Secretary may take whatever actions may be 
necessary to carry out the agency mission during emergencies, 
newly imminent threats, or intelligence indicating a newly 
imminent emergency risk.
    Why isn't that language adequate?
    Mr. Hawley. Well, I appreciate the thought and the attempt 
to address it, but in the world that we operate, every morning 
we sit in the Counterterrorism Committee and we literally talk 
amongst all the agencies and intelligence and law enforcement 
and the military about threats ongoing at that time. And there 
are at any given point a number of different threat streams 
that you worry about. And if I could just say I know this one 
is the one I have really got to worry about and that one is 
going to be the emergency so, therefore, I am going to make my 
changes in this airport or that airport, that would make the 
job a whole lot easier.
    But it is a bedeviling array of dots out there, and we have 
the responsibility to make sure that not one of them is allowed 
to progress and become an attack on the United States. And so 
we constantly try to move and adjust, and you cannot be sure, 
until it is too late, that you have had an emergency. You just 
do not get the advance warning. It is not like a fire erupting 
or an accident happening, then you know you have an emergency 
and then you can declare it is an emergency now, folks, you 
have got to leave your post, because in our business, if it is 
an emergency, you have had an incident.
    Senator Collins. I think that her language is an 
improvement over the Committee bill, but I agree with you that 
there are some problems in it.
    Is the word ``newly'' a problem, that it only applies to 
newly imminent threats? I was surprised that it did not just 
say that you had the flexibility whenever there was an imminent 
threat. I do not know why we would want to qualify that to say 
that it has to be a newly imminent threat. If it is an imminent 
threat, surely you ought to have the flexibility.
    Mr. Hawley. Well, this enemy is very patient, and there is 
planning going on for years. Is that imminent? Is moving around 
people in advance of an operation, is moving around equipment 
in advance of an operation, is that a threat? It would tie you 
up. It would convolute--it convolutes up me, trying to sit 
there and read through that and try to imagine is it this or 
that.
    Trying to define ahead of time how the terrorists are going 
to attack and then build our security strategy based on that I 
believe is foolish. That is the whole point of terrorism, is to 
get around whatever it is that they can figure out you are 
doing, and that is how they do it. So you do not want to give 
them a static target. You have to be able, by nature of the 
job, to keep things moving. So I think trying to define in 
advance an emergency is not a winning strategy.
    Senator Collins. Let me turn to a different issue, and that 
has to do with Rehabilitation Act coverage, which seems to me 
to be a very reasonable right for the employees to have. I am 
confused by your chart versus what I hear from some of the 
employees. Your chart clearly says Rehab Act coverage 
guaranteed, yet I am told that there is an exemption in the law 
for the TSOs and that they do not have coverage under the Rehab 
Act. So explain to me how you can say that Rehab Act coverage 
is guaranteed given this exemption.
    Mr. Hawley. Right. The issue is that under ATSA there is a 
statutory definition of what you have to be to be a TSO, and it 
says you have to have some physical capabilities, such as the 
ability to lift, recognize color. There are a variety of things 
that a TSO has to be physically capable of, and that is written 
in the law. And so what is covered in the law is exempt, that 
is, it is different from the Rehabilitation Act. What is not 
specifically exempted by law is covered by the Rehabilitation 
Act.
    So TSA, once you get past the initial ATSA requirements for 
hiring, does have Rehabilitation Act benefits.
    Senator Collins. I am not sure that clarifies----
    Senator Coburn. So if somebody comes in, if I may, and they 
are physically fit and they get a back injury----
    Mr. Hawley. Correct.
    Senator Coburn. They were physically fit, so they are 
entitled to rehabilitation.
    Mr. Hawley. Yes.
    Senator Collins. Thank you for that clarification, Dr. 
Coburn. That truly was helpful.
    I want to go back to the issue of the Customs and Border 
Patrol officers. They, too, are performing critical jobs. They, 
too, are adjusting all the time to new reports, new 
intelligence, changes in the threats. What is different? You 
touched on this earlier when Senator Voinovich raised this 
issue, but how has collective bargaining been a problem for the 
Customs and Border Patrol agency? Why do you draw a 
distinction?
    Mr. Hawley. It is hard to do with one hand, but this is the 
labor agreements that CBP has to deal with, and we, on the 
other hand, have the ability to take intelligence, make a 
decision, and move. And that is sort of the short form of it, 
but these were pre-September 11 negotiations that happened, and 
it was a different world, and maybe the jobs were separable to 
say, yes, you are in this sector or you are in this position, 
and whoever comes to you, you do whatever it is you do.
    But the difference is our guys are proactive and move into 
different jobs, do different things in different places in an 
unpredictable fashion.
    Senator Collins. You described an internal process that you 
have established whereby employees of TSA can appeal adverse 
actions. But that is not the same as having an independent 
process outside of the agency, with, arguably, a more 
independent arbitrator in the Merit Systems Protection Board.
    Do you object to extending Merit Systems Protection Board 
protections for appealing adverse actions to the TSOs?
    Mr. Hawley. No.
    Senator Collins. Thank you, Mr. Chairman.
    Mr. Chairman, if you will indulge me for just 30 seconds, I 
want to explain to our next panelist, Mr. Gage, that I have 
been called to go to the floor. I am managing the 9/11 bill on 
the floor. My staff will stay and give me a full report, but 
Senator Feinstein has come over to offer her amendment, and I 
need to go debate it. So I am going to leave for the floor.
    Thank you, Mr. Chairman.
    Chairman Akaka. Thank you very much, Senator Collins, for 
your participation here. We will now have a second round of 
questions.
    Mr. Hawley, Chapter 71 of Title 5 provides management with 
explicit rights, including an absolute right to deploy 
employees and to assign them work. In fact, no agency is 
required to bargain about work methods generally, and agencies 
are actually forbidden to bargain about their internal security 
practices. Moreover, every agency has the authority to fix 
broad and flexible job descriptions for agency personnel.
    What flexibility are you lacking under Chapter 71 of Title 
5?
    Mr. Hawley. Well, I would have to go look up Chapter 71, 
but Gale will tell me if I am wrong in this. But the principal 
issue we have is that under the authorities we have for TSA, it 
is wide open. You can figure out what it is you need to do and 
do it, versus a system where you have to identify in advance 
what is permissible and identify those things, agree to it, and 
then move on, and then if you want to change what you 
previously agreed to, you are going to have to go back and fix 
it. And that is the problem that we face with--we have back 
doors at airports. We have air cargo. We have a lot of the 
issues that come up in other hearings about what are you doing 
about these various issues around the airport away from the 
checkpoint. And we use our TSOs in a variety of ways that are 
not predictable and not something that we could categorize out 
in advance. And it almost is silly to say the flexibility we 
need, if you get into restrictions at all, that is where the 
problem is, because specifically the terrorists go where they 
know that you are not going to be. So if they know that your 
agreement says you are going to be here, then they are not 
going to go there; they will go somewhere else.
    So our security requires us to be able to keep that 
changing and a mystery and them not be able to plan around our 
business.
    Chairman Akaka. Mr. Hawley, Senator McCaskill has an 
amendment--and this was mentioned by Senator Collins--to the 
Senate 9/11 bill that retains the flexibility under Section 
111(d), but allows for collective bargaining except for pay 
purposes. Would Senator McCaskill's amendment allow you to keep 
TSA's pay-for-performance system?
    Mr. Hawley. Our understanding is that it would not, and 
there is good language in Senator McCaskill's amendment, but 
the net effect of it, when you get right down to it, is that we 
would lose our personnel authorities that we use for the pay-
for-performance and the other items I mentioned.
    Chairman Akaka. I would like for you to clarify something 
for me from the earlier line of questioning. When you said that 
screeners at San Francisco and in London do not have access to 
the same information as TSOs, you were not implying that these 
airports were less safe, were you?
    Mr. Hawley. No, not at all. In fact, I am from there, and I 
fly out of San Francisco as one of my home airports. It is one 
of the finest in the world, I might add.
    Chairman Akaka. Thank you for that.
    I understand, Mr. Hawley, that TSA has an memorandum of 
understanding (MOU) with the Office of Special Counsel to 
investigate whistleblower complaints. As you know, OSC is 
charged with investigating all prohibited personnel practices, 
including whistleblowing.
    Is there any reason why the MOU with OSC is only for 
whistleblowing and not the other prohibited personnel 
practices?
    Mr. Hawley. I have to say I would go back and check with 
the lawyers on that. But one of the things that Senator Collins 
has been discussing over the last couple of weeks is aligning 
all the systems into one and doing away with that ambiguity. So 
that is something that we could discuss, but at the end of the 
day it is not something I would say is a security problem that 
I should address here.
    Chairman Akaka. Thank you.
    Mr. Hawley, approximately how many whistleblower cases from 
TSA employees are investigated by OSC each year? And what 
action has TSA taken as a result of OSC findings?
    Mr. Hawley. I am told only one.
    Chairman Akaka. Thank you.
    Mr. Hawley, TSA has just made the first payout under PASS, 
the pay-for-performance system. This Subcommittee held a 
hearing in September 2006 which focused on serious problems 
with the Senior Executive Service pay-for-performance system. 
How are you making meaningful distinctions in performance?
    Mr. Hawley. Well, I am very proud of that because it is an 
example of how working with employees--this is really employee 
participation, and we had thousands of our TSOs involved in the 
construction of the program, and it is all broken down into 
technical proficiency, which is about a third of the value, and 
then another third goes into your skill sets, and then you get 
into things like attendance and what have you. And there is 
even a bonus provision for services above and beyond.
    I have got an advisory council, and in the December meeting 
they came to me and said this is not enough of a payout to make 
the statement that you really care about this. And so we turned 
around and invited the head of our advisory committee and the 
head of the Assistant Federal Security Director for Screening 
Advisory Committee, to join me and our senior leadership, and 
we essentially doubled the payout. And that was in a couple of 
hours, and it was really because of our commitment to want to 
demonstrate to the workforce that this was serious, this is 
real, and it is lasting, and we have been able to accomplish 
that.
    Chairman Akaka. Did you invite any union representatives to 
the initial development efforts?
    Mr. Hawley. No, sir. Our employees did not have to pay 
union dues to get that service. We did that as part of our job, 
and we are on a team, and we did it together.
    Chairman Akaka. Thank you. Senator Voinovich.
    Senator Voinovich. First of all, I would like to say that I 
am very interested in pay-for-performance. I happen to be an 
advocate for it; in spite of criticisms over the SES system, 
and I acknowledge--they did have some problems with it, I 
support it. We have been working with Linda Springer, and I 
understand from traveling around the State, OPM has made 
improvements. In addition, I know that Spiral 1.1 for the 
National Security Personnel System at the Defense Department 
has worked out well. In fact, I just met with employees at 
Wright-Patterson Air Force Base to find out how it is working.
    Mr. Hawley, I want more information about how TSA's 
personnel system works, I think it is really important. I think 
people that are getting the job done ought to be rewarded. They 
should be recognized, and I think that is the way you get them 
motivated.
    What I would like to have from you, and I am going to ask 
the same thing from Mr. Gage, is a list of things that TSA 
could not do if subject to collective bargaining. I want you to 
be specific.
    What would collective bargaining provide employees that 
they do not have now? Also, what has TSA done to provide 
employees an independent appeal process for an adverse action 
and protections for a whistleblower.
    In addition to that, I want you to check with the head of 
the Department of Homeland Security, Mike Chertoff. I want to 
know how the Border Patrol meets its mission while working 
under collective bargaining agreements.
    Mr. Hawley. Yes, sir.
    Senator Voinovich. How many whistleblower complaints have 
you had?
    Mr. Hawley. I believe the answer is that is the one that we 
have.
    Senator Voinovich. You have had, to your knowledge, one 
whistleblower complaint since when?
    Mr. Hawley. Since start-up.
    Senator Voinovich. In the whole organization?
    Mr. Hawley. Right.
    Senator Voinovich. And do you keep track of the number of 
complaints that you have had from your people over the years in 
terms of being assigned arbitrarily or taken advantage of or 
not being treated fairly.
    Mr. Hawley. Yes.
    Senator Voinovich. Do we have any of that recorded?
    Mr. Hawley. Yes, we do. I do not have the chart blown up 
for you here, but we have got our EEO complaints. We have had a 
62-percent drop from 2003, and that is a lower EEO complaint 
rate than Department of Education, Department of Labor, 
Department of HUD, U.S. Postal Service, and others.
    Net-net, it is a fraction, it is a very small piece. The 
day-to-day issues, we have a model workplace program that we 
try to get our employees and our management folks talking face 
to face, and that is clearly the best way to have things go. 
And I think the overall employee attitude combines all of those 
things--the workplace environment, whether the environment is 
safe, whether your boss is a decent person, talking to you 
individually, whether it is communication, whether you know the 
mission, whether you are paid well--all those things combined, 
which is why we have gone after a whole spectrum of issues that 
come together that make the net workplace a positive place.
    Senator Voinovich. Another thing that I would like to have 
from you--and maybe you could work with Mr. Chertoff--is to 
provide a description of what TSOs and the Border Patrol do. 
You keep talking about connecting the dots, but what do you 
mean by ``connecting the dots''? I mean, one of the things that 
I am thinking about is when dealing with terrorists, if they 
want to get through our security measures you do not want a 
pattern of how you do things. They watch the pattern. To keep 
from operating in a pattern, then you have to move people 
around, move them to different places, and so forth.
    For example, at the Cleveland airport I recognize the 
screener, and the next time I go through the airport, I see 
them some place else.
    There are some other things that I would like for you to 
describe for me. I understand that unions identify the many 
agencies with collective bargaining agreements, which has not 
stopped or prvented agencies from doing their work.
    What I would like to know is, what benefits screeners would 
have if permitted to bargain that they do not have now.
    Mr. Hawley. On that one issue--and I did cover this in the 
classified briefing, but an example would be if we get intel 
overnight or early in the morning and we want----
    Senator Voinovich. Mr. Hawley, just one other thing. Can 
you move people from one job, say working the gate or the metal 
detector, to doing another job? Do you have the freedom to move 
them around to different responsibilities?
    Mr. Hawley. Totally. They are completely--we move them 
everywhere. We move them from checked bag, passenger 
checkpoint, to screen employees in the back, to do document 
verification. You can progress up and do behavior observation.
    We move them around all the time, and the problem here is 
that under collective bargaining we would be subject to 
arbitrator and complaint that, ``Hey, you moved me for a non-
valid reason. I am tired of being asked to do this,'' or ``This 
does not make sense to me.'' And if we have, as we frequently 
do, classified reasons for wanting to do it, we are not able to 
make sense to somebody who is trying to be an arbitrator 
outside of the government. So that is one thing.
    Believe me, anything that is a security interest, we are 
going to move and take care of it. The problem is after the 
fact going back and trying to convince arbitrators that--at 400 
airports that this made sense. It just opens us up to an 
incredible morass of non-value-add.
    Do you want me to answer some of the other----
    Senator Voinovich. Well, I am out of my time, but if we can 
take one answer, then--OK?
    Chairman Akaka. Yes.
    Senator Voinovich. Yes.
    Mr. Hawley. Well, the first thing is our TSOs would get a 
bill for $17 million of dues that they do not have today, and 
they would lose the ability to negotiate directly, to 
communicate directly on these issues with management, including 
personally to me and everybody between me and a front-line TSO. 
And I think that is absolutely critical for any kind of 
performance organization, as you know. And connecting that 
communication to performance and strategy, all those things, we 
are able to act as one unit across the entire United States. 
And we can flow people from not only checkpoint to checkpoint, 
but airport to airport, or support other people off-airport. 
And that flexibility is a critical piece that depends on people 
working together and communicating. And to set up a blockage 
environment where we have to go through and file a process and 
a notice when we make a performance change is just not going to 
happen, and then we are subject to the arbitration after the 
fact.
    So I have grave concerns at our ability to move and sustain 
our security strategy.
    Senator Voinovich. Thank you.
    Chairman Akaka. Thank you very much, Senator Voinovich. 
Senator Coburn.
    Senator Coburn. Thank you. I will be brief, and I will not 
use all my time because I want our other guest to have time to 
testify and have questions.
    I want to try to encapsulate this. If the American public 
is listening to this testimony today, from what I have heard 
you say, you are in full emergency mode all the time. That is 
what protecting air traffic is all about. That is what 
screening and security at our airports is all about. It is to 
assume that we are in an emergent situation all the time. Is 
that correct?
    Mr. Hawley. That is absolutely correct.
    Senator Coburn. And so let's say you have new intel that 
requires you to do something, and you are unionized, and then 
you have arbitration after the fact. You cannot use, you cannot 
divulge classified information to someone or the reason why you 
would do it without disclosing our classified information. Is 
that correct?
    Mr. Hawley. That is correct.
    Senator Coburn. So I am going back to the other point. I 
saw a reaction to your $17 million quote, but $30 a month times 
12 months a year times 41,000 screeners comes real close to $17 
million, in my estimation. They are not going to negotiate for 
wages, but they are going to negotiate everything else that has 
to do with running security at the airports on an on-emergent 
basis all the time.
    Mr. Hawley. Yes, sir.
    Senator Coburn. I think the case is closed. I will yield 
back.
    Chairman Akaka. Thank you very much, Senator Coburn.
    Mr. Hawley, let me correct something that you said. An 
employee makes a choice as to whether he or she wishes to join 
a union. No one pays dues unless the person voluntarily chooses 
to join a union. When I asked you if you included union 
representation in developing your pay-for-performance system, 
you said you did not want employees having to pay union dues. 
Are there any circumstances in which you believe discussions 
with unions would be beneficial to TSA and its employees?
    Mr. Hawley. If we lacked the ability to communicate with 
our employees, I would say it is something that you would have 
to look at. But we have employee councils all over the United 
States at our airports; 91 percent of our workforce in some way 
is covered with our employee councils. And we already did all 
this without the need for a union.
    My point is that, with due respect to unions and the union 
workers--I mean no disrespect to that. But for our workforce 
and our ability to move fast and change our mission and stay up 
with terrorists, we do not have time to set up a process where 
we go and give notice and find other people and try to convince 
them and I have got to go hire lawyers to talk to their 
lawyers. That is a waste of time. We have direct communication 
with our employees. We have rolled all this out in a year. And 
I would say to any organization, union or non-union, try to 
meet that performance. And I would also say for our TSOs, for 
what they have done over the last year, they have done an 
outstanding job, and I do not want to break up that 
relationship that we have that is direct communication, where 
we are able to move on behalf of the traveling public and 
address--I think Senator Coburn said it exactly right. This is 
an emergency, and I put in my statement that we know of 
terrorist interests in attacking U.S. aviation, we know of 
attack planning, we know of attack training, and we know of 
terrorists moving, coming in our direction. And in an 
unclassified environment, I do not know how to say it any 
clearer.
    Chairman Akaka. Mr. Hawley, one of the primary complaints I 
have heard from TSOs is that Federal Security Directors (FSDs), 
who are in charge of each airport, have different ways of 
interpreting and implementing TSA policy directives. As a 
result, TSOs are not treated consistently from airport to 
airport.
    Do FSDs have the authority to change personnel policies or 
standard operating procedures from those issued by TSA?
    Mr. Hawley. That is one of the great strengths of TSA, is 
that we have strong FSDs. As you know, all over the United 
States and in communities of vastly different characteristics, 
we have TSA checkpoints. So we have to have a fair process, but 
one that has the flexibility. And we now go to local hiring 
where our TSOs get to actually engage with people who are 
thinking of coming on board TSA as opposed to getting one 
national agreement that hires kind of a manufacturing process 
whether they fit or not.
    We have local hiring, we have local authority, we have all 
of the ability to move and flex to meet the local standards. 
And I am sort of caught between because if we have a union, we 
have one agreement for the whole United States, that just does 
not work for our varied workforces. And if we have 400 unions, 
how the heck are we going to have a unified security system?
    So I think that the system we have now is a real plus to 
have the FSDs have that flexibility.
    Chairman Akaka. Mr. Hawley, TSA has an internal board 
called the Disciplinary Review Board (DRB), to adjudicate 
employee appeals of adverse actions. Approximately how many 
cases per year are filed? And how many are found in favor of 
the employees?
    Mr. Hawley. I do not know, but we would be happy to provide 
it for the record.
    Chairman Akaka. Would you please do that?
    Mr. Hawley. Certainly.
    Chairman Akaka. And who sits on the DRB? How are members 
selected? And what training do they receive?
    Mr. Hawley. They do have training, and I will have to get 
you the full list. I do not, because I am part of the appeal 
process. And we have a principle of trying to get as much peer 
review as possible, and, in fact, at several of our airports, a 
TSO who is subject to a disciplinary proceeding can, in fact, 
pick the people who will sit on his or her review board. So it 
is a peer review of TSOs by TSOs, and I think that is a very 
progressive way to go, and that is the direction I would like 
to take the organization.
    Chairman Akaka. Senator Voinovich, do you have questions?
    Senator Voinovich. I have no further questions, no.
    Chairman Akaka. Senator Coburn, do you have questions for 
the next panel?
    Senator Coburn. Yes.
    Chairman Akaka. Well, with that let me insert my other 
questions into the record.
    I want to thank you again, Mr. Hawley, very much for your 
testimony and responses to our questions. As you know air 
transportation is very critical to Hawaii because of the 
tourism industry and its geographic location so it is important 
for TSA to be working well. I thank you for your statement 
today, and I look forward to continuing to work with you. Thank 
you very much.
    Mr. Hawley. Thank you, Mr. Chairman.
    Chairman Akaka. I would like to ask the second panelist, 
John Gage, to come forward. Mr. Gage is the National President 
of the American Federation of Government Employees who has been 
active in seeking increased employee protections for TSA 
screeners.
    As you know, it is the custom of the Subcommittee to swear 
in all witnesses. Please stand and raise your right hand. Do 
you swear that the testimony you are about to give this 
Subcommittee is the truth, the whole truth, and nothing but the 
truth, so help you, God?
    Mr. Gage. Yes, Senator, I do.
    Senator Akaka. Mr. Gage, please proceed with your 
statement.

    TESTIMONY OF JOHN GAGE,\1\ NATIONAL PRESIDENT, AMERICAN 
               FEDERATION OF GOVERNMENT EMPLOYEES

    Mr. Gage. Yes, thank you, Mr. Chairman, Senator Voinovich, 
and Members of the Subcommittee, for the opportunity to 
testify. I am accompanied by two TSOs from Cleveland Hopkins 
Airport: Joe Gattarello from Lakewood, and Karen Budnik, lives 
in Grafton, Ohio. They have been AFGE supporters since the 
inception of TSA.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Gage appears in the appendix on 
page 83.
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    I am proud to say that AFGE has been aggressively fighting 
for the civil service and collective bargaining rights of TSOs 
since the debate creating TSA began in 2001. At the request of 
TSOs, we filed our first representational petition at BWI in 
November 2002. A few months later, James Loy, announced that 
the agency would not permit collective bargaining, prompting us 
to file suit in U.S. District Court. Citing the obscure 
footnote in ATSA which granted the Under Secretary unfettered 
discretion in setting the terms and conditions of employment, 
the case was dismissed. Nevertheless, AFGE responded to TSO 
complaints and has tried to represent them through the very 
limited venues available, such as the TSA Disciplinary Review 
Board, the Office of Workers' Compensation, and the EEOC. But 
these are not meaningful alternatives to a fair grievance 
procedure that these American workers deserve.
    The House passed the 9/11 Commission recommendations with 
the provision that would grant TSO their fundamental and long 
overdue rights. Tomorrow, as you know, the Senate is expected 
to vote on this matter, and I hope that it will put an abrupt 
stop to this unwarranted abrogation of workers' rights. I want 
to thank Senator Lieberman and Senator McCaskill, both stalwart 
defenders of our national security, for their leadership on 
this matter.
    The most insupportable inequity for TSOs is the denial of 
the right to engage in collective bargaining. Mr. Hawley says 
that TSOs are free to join unions, but a meaningful right to 
organize and belong to a union includes the right to union 
representation before management. Because TSA has no legal 
obligation to even talk to employee representatives, much less 
engage in collective bargaining, the TSO's right to union 
representation is non-existent. It is only through collective 
bargaining that management has a legal obligation to listen to 
employee concerns and work through issues collaboratively.
    The range of issues over which TSOs seek to bargain is 
routine. The issues include the following: A fair promotion 
system, availability of flex time, overtime, health and safety 
improvements, parking, child care, and public transportation 
subsidies. Anyone who works for a living and anyone who has 
struggled to balance work and family responsibilities knows 
that these are the everyday items that can make all the 
difference in reaching that balance. And when these real day-
to-day issues are resolved, the result is a strong loyal 
workforce.
    TSOs are just like any other workers. They need workplace 
stability, and they want to be treated fairly. And the fact 
that they clamor for union representation and collective 
bargaining demonstrates quite clearly that they are not 
receiving either in TSA's current human resource system. They 
do not want to continue to suffer the shameful reprisals of 
agency management as doomed individuals. They do not want to 
continue to work in an atmosphere of coercion and intimidation.
    The employees' experience of managerial inconsistency and 
arbitrariness has brought them by the thousands to the 
conclusion that they need a voice at work, with the structure 
and protection of a legal collective bargaining system. And, 
yes, they want a contract so that supervisors no longer make it 
up as they go along, engage in favoritism, arbitrary 
decisionmaking, and a stubborn unilateralism that wreaks havoc 
with their lives. What they want and deserve is as American as 
apple pie. What they want is to be treated with respect and 
dignity, and TSOs recognize that collective bargaining is the 
best means to bring dignity, consistency, and fairness to the 
workplace.
    They are not asking for rights that go beyond those 
currently granted to Federal employees, and despite the 
apparent misconception of 34 U.S. Senators, they are not asking 
for the right to strike.
    Let's look at some facts, and I want to bring up what 
Senator Akaka did, this Capitol Hill Police contract. It is 
very interesting.
    Opponents of collective bargaining rights for TSOs invoked 
September 11, 2001, as if the lesson of that terrible day were 
to deprive Americans of their rights at work. Thousands of 
Federal employees and other unionized public employees are 
engaged in critical law enforcement and national security work, 
and they bargained contracts with their agency managements both 
before and after September 11. The collective bargaining 
agreement between the U.S. Capitol Police and the Fraternal 
Order of Police is a case in point. These are the very men and 
women who keep our lawmakers, staff, and visitors safe from 
terrorism in the District of Columbia. That contract includes 
language which reiterates current law and regulation regarding 
the right of managers to act not only in the context of 
emergency but security-related positions and even staffing 
shortages.
    There is nothing in this language to which AFGE would 
object. The exigency language eliminates entirely the arguments 
advanced by those who claim that such rights would undermine 
management's ability to act, especially to act to prevent a 
crisis. Despite the heightened concerns about security and 
union representation, the 2003 contract negotiated by the 
Capitol Police is quite similar to the standard agreements AFGE 
has with numerous Executive Branch agencies, including the 
Border Patrol, other DHS agencies, the Department of Defense, 
and the Bureau of Prisons. The police officers' contract refers 
frequently to the provisions of the Federal labor relations 
statute. And I must say, Senator, that when you talk about the 
mission of an agency, every agency has a different mission, and 
you bargain within the context of that mission. This contract 
on assignment of work, on transfers, on security, on leave, all 
have provisions in there where management can say that the 
mission--or there is something going on, a situation, and they 
can simply suspend virtually every article in this contract 
that comes down to assignment of work. And that is the same 
type of mission that we would be dealing with when we would 
bargain a contract with TSA.
    The subjects bargained are virtually identical. The Capitol 
Police contract addresses promotion plans, daycare, health and 
safety, overtime, hours of work, leave, a fair grievance 
procedure--all things that are standard to a typical AFGE 
contract. So what is the difference? All the employees in DHS, 
the Capitol Police, DOD, and elsewhere have these rights. TSOs 
serve alongside with thousands of other workers whose 
responsibilities include protecting our homeland, and those 
other workers are unionized.
    The 2002 enactment of ATSA that created TSA and federalized 
the duties of screening passengers and baggage at airports was 
a prime opportunity to establish a highly trained, well-paid, 
and fully empowered professional public workforce. TSA 
management instead created its own personnel system, without 
the widely accepted protections afforded to most Federal 
workers. And look at the results: Highest injury rates, 
illness, and lost time rates in the government. TSOs' overall 
attrition rate is more than 10 times higher than the 2.2-
percent attrition rate for Federal civilian employees and 
upwards of 40 percent at some major airports. And, of course, 
by the OPM survey, they have the lowest morale of any employees 
in the Federal Government.
    Since the inception of the agency, TSOs have demonstrated 
their patriotism and their commitment to the work and the 
safety of the American public. And before September 11 and 
since, the American labor movement has also demonstrated our 
patriotism and commitment to our national security because we 
are the firefighters, the police, the Border Patrol, the 
emergency medical technicians, and TSOs who protect our 
homeland every day.
    We urge the Senate to recognize that because the 
responsibilities are so similar to those of other public safety 
officers with full labor rights, TSOs deserve the same civil 
service and collective bargaining rights. It will help the 
employees, to be sure, but the benefit to the American people 
will be enormous. Please, give them their union. Let them build 
the teamwork and camaraderie necessary to do the job. We will 
all be safer as a result.
    Thank you, Senator.
    Chairman Akaka. Thank you for your statement, Mr. Gage.
    In his statement to his TSOs on Wednesday, Assistant 
Secretary Hawley said that collective bargaining would delay 
changes to standard operating procedures, the introduction and 
pilot testing of new technology, the ability to introduce 
additional security functions, and implementation of career 
path and advancement opportunities.
    What is your response to Mr. Hawley's statement?
    Mr. Gage. Senator, there is no basis in fact. When we 
bargain a contract and we put down some basic rules for 
employees, this is all in the context of the mission of that 
agency. There is not the same mission in a VA hospital that 
there is with the screeners. There is not the same mission in 
HUD as there is in DOD.
    Management under the law can exercise their rights 
according to their idea of the mission of the agency. So to say 
that screeners might have to be moved from Newark to New York, 
this could be done on a moment's notice. There is no bargaining 
obligation when it becomes a mission-critical issue.
    So when we hear that having a voice at work, having 
collective bargaining rights is somehow going to affect the 
national security of this country, I really take offense to it, 
Senator. It has never happened in 60 years. It has never 
happened at any of our agencies through world wars, through 
every calamity that has happened to our country. And to say 
that now giving rights to these screeners is going to affect 
national security and using trumped-up reasons, people--I think 
some of these people have never seen a contract--and the true 
management rights that the agencies have on each of these 
critical issues.
    Chairman Akaka. Mr. Gage, TSA argues that it has instituted 
programs that drastically cut the number of workers' 
compensation claims and discrimination claims before the EEOC. 
In addition, TSA claims morale has improved dramatically.
    Given the progress TSA has made, why then do you believe it 
is necessary to change the way TSA's personnel system operates?
    Mr. Gage. First of all, I do not agree with that, Senator. 
We have had over 4,000 TSOs contact us with expressions of 
interest that they want a union and they wanted to join our 
union. This is only in the last several weeks.
    Now, when I hear Mr. Hawley say that there has been one we 
believe complaint--one in an agency of 40,000 people, one in 6 
years--that shows to me that people are afraid to come forward. 
And when you say that EEO complaints have gone down, EEO is 
probably the only viable forum that employees have. But many of 
their issues are not really subject to EEO. They should be 
handled in a fair grievance procedure. So many of the EEO cases 
that were filed originally by employees just looking for a 
forum, any forum, went into EEO, were dismissed, were really 
not discriminatory cases. They are basic cases of fairness and 
equity in a worksite that should be handled by a grievance 
procedure.
    So I do not think there has been the improvement. That is 
not what I am hearing. I guess this is anybody's opinion. Mr. 
Hawley can have his, and certainly from the screeners I talk 
to, I can have mine.
    Chairman Akaka. Mr. Gage, TSA argues that collective 
bargaining will impede its ability to move personnel as needed 
to respond to threats in a timely fashion. You mentioned this 
earlier, but do you have any further response to that?
    Mr. Gage. Well, it is just not true, Senator. It is just 
not true. And we see all these arguments that are coming 
forward against basic worker rights to have a voice at work.
    There is no way that this union or any of our TSOs, many of 
which are veterans, would ever stand up and say, no, we are not 
going to respond to a management initiative or a management 
change that was necessary. It is just not in the law. It is not 
in our contracts. It is not in reality.
    Chairman Akaka. Mr. Gage, you mentioned that Capitol Police 
have a flexible bargaining agreement. Mr. Hawley said that TSOs 
are different from other law enforcement officers. Do you agree 
with that?
    Mr. Gage. Yes, I do. They are all different. Our DOD is 
different than law enforcement, our Bureau of Prisons, our ICE 
officers. And it is very interesting that we are going to the 
table in 2 weeks on ICE and on CIS. But you have to take--and 
that is what bargaining is. You have to accept the mission of 
the agency and bargain within the context of that mission.
    So, yes, many of our contracts, in fact, are different 
because the missions of the agencies are not as restrictive as 
they would be, for instance, in national security. But 
employees still can be afforded a collective bargaining right, 
and they can still bargain a fair grievance procedure, merit 
promotion issues, health and safety, without coming anywhere 
close to impeding the mission of this important agency.
    Chairman Akaka. Mr. Gage, Mr. Hawley said that TSOs are 
satisfied with the TSA pay-for-performance system. Do you agree 
with that assertion?
    Mr. Gage. I think that is probably the biggest issue of 
concern for TSOs. They do not know how it works. They do not 
think it is fair. They do not believe in it. It is not a 
motivator. And despite what Senator Voinovich thinks about the 
pay-for-performance, I think this system needs a heck of a lot 
more employee input.
    Chairman Akaka. TSA claims that administrative costs for 
allowing collective bargaining for TSOs would at a minimum be 
$160 million in order to hire labor relations specialists and 
negotiators and train employees and management on these issues. 
TSA further claims that amount would be equal to removing 3,500 
front-line screeners and cause enormous passenger delays.
    What is your response to this claim?
    Mr. Gage. I just do not know what to say about that, 
Senator, that it would cost that much money. At other agencies 
it certainly does not cost that much money to bargain a 
contract. At some agencies we do it in a couple weeks. It is 
just incredible that anybody would say that it is going to cost 
this agency $160 million to bargain a labor agreement.
    Chairman Akaka. Thank you. Senator Voinovich.
    Senator Voinovich. Thank you, Mr. Chairman. We respectfully 
have a different of opinion on pay-for-performance.
    Mr. Gage. Yes, we do.
    Senator Voinovich. And I am going to be very interested to 
do some further work and surveying of the people in TSA to find 
out how they feel about it. I think that it has a good way of 
motivating people to do a better job and reward those that are 
working harder.
    Obviously, if this provision passes, the collective 
bargaining--or not the collective bargaining but the pay-for-
performance would go out the window.
    Mr. Gage. Why?
    Senator Voinovich. Well, I mean, you do not like pay-for-
performance. You have pretty well said that you do not like it.
    Mr. Gage. Senator, management has the right to set the 
performance evaluation system, the tiers of it, and how it is 
going to be used. We can bargain some fairness and equity 
issues, but that is not true to say pay-for-performance would 
go down the tubes if we had collective bargaining. It is simply 
not true.
    Senator Voinovich. Do you have pay-for-performance any 
other place where you represent workers?
    Mr. Gage. Probably. But pay-for-performance is really a new 
thing that has come in only in the last few years. We are going 
to be bargaining, see what they have to say in ICE and CIS and 
the other places in the Department. DOD, we stand ready--even 
though we are challenging the labor relations part of it in 
court, they are moving forward with the pay-for-performance, 
and we will stand ready to go to the table with it on that. But 
there is nothing to say that collective bargaining, I can go in 
there and say, no, we are not going to have pay-for-
performance. Our rights do not go that far, Senator.
    Senator Voinovich. Well, I can just tell you that the 
position that your union is taking has been against pay-for-
performance.
    Mr. Gage. That is true. It has.
    Senator Voinovich. And I just want to make it clear that 
the dues are $30 a month. Is that right?
    Mr. Gage. No. Each of our locals sets its dues, and right 
now I believe the screeners--this is not even dues. They are 
paying us off a bank allotment. This is not dues check-off that 
we have in a unionized shop or a unionized--where we have 
recognition. They are just contributing money to our fight for 
their rights off a bank allotment, and it is $7.50 a pay that 
the supporters of AFGE are contributing.
    Senator Voinovich. This is in Cleveland that they pay 
$7.50. Is that right?
    Mr. Gage. Correct, yes. And that money is not being used 
for other union activities. That money is being segregated 
outside even of our constitution, only to wage the fight for 
screener rights.
    Senator Voinovich. Well, the thing that I would like to 
have is the same question that I asked of Mr. Hawley. What 
would collective bargaining give workers at TSA across the 
country that they do not have right now?
    Mr. Gage. I think that we would--first of all, when they 
think there is a fair process, a grievance procedure, I think 
that really has people--gives them a little more hope and a 
little more faith and a little more security. But if you look 
at our contracts, Senator, and what we go on, our health and 
safety, where we would have a committee of employees and we 
would address health and safety issues, our merit promotion is 
very important.
    Senator Voinovich. Are you saying that health and safety--
one of the things that I was impressed with that Mr. Hawley 
presented was this chart right here,\1\ including days absent 
from work due to injury decreases due to nurse case management, 
from 45 days to 20.5 case. Wouldn't you say that this is an 
effort by the agency to try and be responsible and try to work 
to make it better.
---------------------------------------------------------------------------
    \1\ The chart referred to appears in the Appendix on page 98.
---------------------------------------------------------------------------
    Mr. Gage. I certainly hope so.
    Senator Voinovich. The other thing that he showed was TSO 
voluntary attrition rate versus Border Patrol agents and 
private sector.
    Mr. Gage. I do not agree with that statistic. I do not know 
what ``voluntary'' means there. And I know we just checked with 
our Border Patrol, and there is a 5-percent attrition rate at 
our Border Patrol.
    Senator Voinovich. I would like you to take these 
statistics and get back to me to show how it is different. 
There is too much disagreement on the private sector data and 
sources, 29 percent for transportation warehousing; utilities, 
24 percent; the Border Patrol agents full-time, 21.2 percent; 
Federal Government, 17 percent. TSA claim that full-time TSOs 
are 12.6 percent. Now, they have part-time workers. But I would 
like to see what your information is.
    Mr. Gage. Yes, sir.
    Senator Voinovich. Do you agree with Mr. Hawley that there 
is a difference between the Border Patrol and the TSOs?
    Mr. Gage. Yes, sir.
    Senator Voinovich. And any argument you would negotiate 
would be different because of the different environment.
    Mr. Gage. Of course. We negotiate differently than Social 
Security, Border Patrol, VA, across the board. Each of these 
agencies has their own critical missions, and you have to 
bargain within the context of it.
    Senator Voinovich. So you do agree that they are in a 
different kind of environment than the Border Patrol or other 
divisions of DHS?
    Mr. Gage. Yes. I would not go to evaluate the level of 
national security that each of these very valuable workforces 
maintain. I do not know----
    Senator Voinovich. How about jurisdiction? That is another 
one I am interested in.
    Mr. Gage. Jurisdiction?
    Senator Voinovich. Jurisdiction being where I work. I am a 
screener, and under a collective bargaining agreement would 
mean that you would negotiate to keep individuals assigned to 
one task or function of a TSOs current job responsibility?
    Mr. Gage. Senator, that is so routine in just about every 
agency, especially these days of staff shortages. I mean, our 
people are very versatile. Of course, they do more than one 
job. Our people expect it in virtually every agency, or 
different parts of a job, and that is clearly--if anyone thinks 
that they would have to come to the union before they put a TSO 
on the exit lane or on the x-ray--it just would not happen.
    Senator Voinovich. But do you have the ability to require 
certain jurisdiction, the job function?
    Mr. Gage. No, Senator. It really is a fabrication. None of 
our agencies have a job classification that would prohibit 
management from assigning you on a day-to-day basis or any 
other basis to a job that needed to be done.
    Senator Voinovich. How about emergency situations and 
negotiations after the fact or challenging whether it is an 
emergency?
    Mr. Gage. No, that is not true either. Management has the 
right even on issues less than emergencies if it is something 
critical. But let's say someone really does get screwed in a 
deployment of people. I think to come back and talk about it 
after the fact and if you can make that person whole, what is 
wrong with that? That is what American workers deserve.
    Senator Voinovich. Do you know what the experience is with 
the Border Patrol?
    Mr. Gage. The Border Patrol is very good. We have had them 
for 40 years, and I do not think we have ever had a situation 
where people said, ``No, I am not going, and my union contract 
says I do not have to go.''
    There are deployments that are done routinely in all of 
these agencies in DHS, as well as DOD. And I cannot think of 
any and I know there are not any where a union contract has 
stopped a deployment when an agency says it is a mission issue 
and we have to do it.
    Senator Voinovich. And there are not that many instances of 
arbitration after the fact?
    Mr. Gage. There really are not. If I sat here long enough, 
I probably could think of a couple, but none jump to my mind. 
The relationships that we try to have with agencies is one that 
we want this agency to be successful. We do not want to be 
tangling with them and putting them in the news and everything. 
We want them to be successful, and we want the workers to have 
a fair shot, though, and to be treated fairly. So it is not 
like we are going in there and going to try to throw nuts and 
bolts into the operation of this agency. We understand how 
critical it is.
    Senator Voinovich. Thank you.
    Chairman Akaka. Senator Coburn.
    Senator Coburn. Yes, sir. Mr. Gage, thank you for coming 
before us today.
    Mr. Gage. Thank you, sir.
    Senator Coburn. Tell me what ``stubborn unilateralism'' is.
    Mr. Gage. Well, I think that when you see--you are going to 
training, I am retiring next--I saw this at DHS, and I will 
just use it. I have not seen this in this particular thing. But 
there was a guy who was down in Dallas, and he says, ``John, 
they are sending me to training on the customs side of the 
house. It is a 13-week training. I am retiring in 4 weeks. I am 
trying to train the guy who is replacing me, and I cannot get 
it across to management that this is really a stupid thing to 
do.''
    Senator Coburn. I know, but we are not talking about them. 
We are talking about TSA.
    Mr. Gage. Well, we do not represent them.
    Senator Coburn. But where is the stubborn unilateralism 
that you referred to in TSA? Those are your words. I am giving 
you your words back.
    Mr. Gage. I think those are things that, when we want to--I 
think the whole framework of this arbitrariness, really, is 
coming to us in the words of our screeners: ``How does the pay 
work? Why did I only get this?'' ``Well, we do not have to tell 
you. Bye.'' And it is a ``my way or the highway'' perception 
that I am trying to get across to you, Senator.
    Senator Coburn. Have you seen any improvement over the last 
few years in TSA?
    Mr. Gage. Yes, sir.
    Senator Coburn. So they are responding to some of the 
problems that they have been faced with starting in 2002.
    Mr. Gage. Well, I hope so. There are about 35, 40 percent--
--
    Senator Coburn. I am not sure anybody in this country could 
have set up that kind of organization in a short period of time 
without a great deal of difficulty.
    Mr. Gage. That is true.
    Senator Coburn. The fact is that they have made great 
improvements.
    Mr. Gage. Senator----
    Senator Coburn. Let me finish.
    Mr. Gage. Yes, sir.
    Senator Coburn. This chart is based on G-5 to G-7 
rankings,\1\ and it is accurate for the Border Patrol, G-5 
through G-7. That is the reference. So from G-5 to G-7, TSA 
actually has less attrition rate than the Border Patrol does.
---------------------------------------------------------------------------
    \1\ The chart referred to appears in the Appendix on page 97.
---------------------------------------------------------------------------
    Now, granted, that is entry level. I understand that. But 
the point is that says they are now making good improvement on 
the people that are coming in for training and keeping them. 
The fact is that the Federal Government has the lowest 
attrition rate of anybody in the world. We have the best 
benefit packages. The benefit packages in the Federal 
Government beat anything inside Oklahoma. You cannot get a job 
with the kind of benefit packages that the Federal Government 
has. That is wonderful. We should have the best paid and the 
best benefit packages. But to say that they have not improved, 
they have made marked improvements in all the areas of concern. 
And the fact is that it will be interesting to hear if you can 
bring to me other whistleblower actions that have been made 
other than the one that they talked about, because I am 
surprised that there is only one.
    Mr. Gage. I am amazed.
    Senator Coburn. I am, too. So I think that is very 
important for us to have the right information, because if, in 
fact, they are improving, it ought to be recognized rather than 
to say that there is stubborn unilateralism, which are your 
words that you implied to the TSA.
    Mr. Gage. Yes.
    Senator Coburn. The screeners that I talk to in Tulsa and 
Oklahoma City--and I fly twice a week back and forth either 
through Chicago or Dallas. I am not seeing that.
    I am not saying that there is not a large need for 
improvement there and lots of other places in the Federal 
Government. As a matter of fact, I am a champion for efficiency 
and improvement. But to not recognize the marked improvements 
that have come about through TSA and to not--and I am a big 
believer, I am with Senator Voinovich: Pay-for-performance 
works everywhere except where we will not let it work and then 
we are not as efficient. And the question that we should have 
on pay-for-performance and that you all raised: Is it fairly 
administered? Is there confidence in it? It is not whether pay-
for-performance works. We know it does. The question is whether 
it is fairly administered or not?
    So we should be embracing pay-for-performance, and we 
should be embracing the fairness under which it is 
administered.
    Mr. Gage. Senator, here is my one disagreement with you.
    Senator Coburn. OK.
    Mr. Gage. Whether they are improving or not, that does not 
negate the right of workers to organize and have a voice at 
work on their terms. Collective bargaining----
    Senator Coburn. It does when it concerns the national 
security and transportation security of this country. And you 
just heard him say they run that like there is an emergency 
every day. If we are going to work--I do not want them spending 
one minute worrying about a shop steward when my wife or my 
family or Senator Voinovich's family is getting on an airplane. 
That should be the last thing that anybody in management in TSA 
should ever even be thinking about.
    And the point comes that it is not all as simple as you 
make it, because what happens is that once there is a mission-
critical decision and you all have a contract, I guarantee you 
that tons of time is spent second-guessing it, arbitrating it, 
and then working on it after the fact. And that occurs every 
day in the areas that you represent in this Federal Government.
    Mr. Gage. Senator, these are rights. They should not be 
taken away lightly. In fact, I think these workers should 
receive the benefit of the doubt--not because someone--and from 
what I have heard Mr. Hawley talk about collective bargaining--
he has his job, I have mine. But I do not think you can just 
say that they have made some improvements----
    Senator Coburn. I am not saying that. We are not saying 
that.
    Mr. Gage. There is somebody's bogus national security 
issues----
    Senator Coburn. What we are saying is: Whose rights come 
first? The American public and the right to have the most 
efficient, most flexible, most secure transportation system in 
the world----
    Mr. Gage. I agree, sir, and that would include collective 
bargaining.
    Senator Coburn [continuing]. Or a union who is quoted as 
saying, ``We have got to gain 40,000 members a year to break 
even today, but because of the age of our members and pending 
retirement, that number will go to 50,000. As a matter of fact, 
the campaign is the perfect opportunity to convince TSA 
employees to join their union become active as volunteers in 
our great union.''
    Mr. Gage. What is the matter with that?
    Senator Coburn. The rights of Americans to have a secure, 
fast, safe, and reliable security system at the airport is the 
No. 1, right.
    Mr. Gage. Correct.
    Senator Coburn. And that is not exclusive and does not 
exclude the right of the valuable TSO officers we have today. 
But it does not mean that those rights should ever come in 
front of the others.
    Mr. Gage. I agree with you, Senator. I think they can 
operate very well together: Collective bargaining rights for 
the workers, and that agency performing excellently its 
national security obligations. I do not see these as the point-
counterpoint that you do, Senator.
    Senator Coburn. Well, I do.
    I will yield back.
    Chairman Akaka. Thank you very much, Senator Coburn.
    I want to thank you again, Mr. Gage, and also Assistant 
Secretary Hawley, for being with us today to provide additional 
information on the proposal to provide TSOs with employee 
rights and protections. I am confident that today's hearing 
will contribute to the current Senate debate over the personnel 
system for TSA screeners.
    I ask at this point unanimous consent that an editorial in 
today's Washington Post on TSA collective bargaining be 
included in the record.\1\
---------------------------------------------------------------------------
    \1\ The article appears in the Appendix on page 111.
---------------------------------------------------------------------------
    I want to thank you again and thank the Members who were 
here. The hearing record will be open for one week for 
additional statements or questions other Members may have.
    With that, the hearing is adjourned.
    [Whereupon, at 4:30 p.m., the Subcommittee was adjourned.]


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