[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2687-S2689]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 559. Mr. SCHATZ submitted an amendment intended to be proposed by
him to the bill S. 2226, to authorize appropriations for fiscal year
2024 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
After subtitle G of title X, insert the following:
Subtitle H--TSA Workforce
SEC. 1091. SHORT TITLE.
This subtitle may be cited as the ``Rights for the
Transportation Security Administration Workforce Act of
2023'' or the ``Rights for the TSA Workforce Act of 2023''.
SEC. 1092. DEFINITIONS.
In this subtitle--
(1) the term ``2022 Determination'' means the publication,
entitled ``Determination on Transportation Security Officers
and Collective Bargaining'', issued on December 30, 2022, by
Administrator David P. Pekoske, as modified, or any
superseding subsequent determination.
(2) the term ``adjusted basic pay'' means--
(A) the rate of pay fixed by law or administrative action
for a position occupied by a covered employee before any
deductions; and
(B) any regular, fixed supplemental payment for non-
overtime hours of work creditable as basic pay for retirement
purposes, including any applicable locality payment and any
special rate supplement;
(3) the term ``Administration'' means the Transportation
Security Administration;
(4) the term ``Administrator'' means the Administrator of
the Administration;
(5) the term ``appropriate congressional committees''
means--
(A) the Committee on Commerce, Science, and Transportation
of the Senate;
(B) the Committee on Homeland Security and Governmental
Affairs of the Senate;
(C) the Committee on Homeland Security of the House of
Representatives; and
(D) the Committee on Oversight and Accountability of the
House of Representatives;
(6) the term ``conversion date'' means the date on of which
subparagraphs (A) through (F) of section 1093(c)(1) take
effect;
(7) the term ``covered employee'' means an employee who
occupies a covered position;
(8) the term ``covered position'' means a position within
the Administration;
(9) the term ``employee'' has the meaning given the term in
section 2105 of title 5, United States Code;
(10) the term ``screening agent'' means a full- or part-
time non-supervisory covered employee carrying out screening
functions under section 44901 of title 49, United States
Code;
(11) the term ``Secretary'' means the Secretary of Homeland
Security; and
(12) the term ``TSA personnel management system'' means any
personnel management system established or modified under--
(A) section 111(d) of the Aviation and Transportation
Security Act (49 U.S.C. 44935 note); or
(B) section 114(n) of title 49, United States Code.
SEC. 1093. CONVERSION OF TSA PERSONNEL.
(a) Restrictions on Certain Personnel Authorities.--
(1) In general.--Notwithstanding any other provision of
law, effective as of the date of enactment of this Act--
(A) any TSA personnel management system in use for covered
employees and covered positions on the day before that date
of enactment, and any personnel management policy, letter,
guideline, or directive of the Administration in effect on
that day, may not be modified;
(B) no personnel management policy, letter, guideline, or
directive of the Administration that was not established
before that date issued pursuant to section 111(d) of the
Aviation and Transportation Security Act (49 U.S.C. 44935
note) or section 114(n) of title 49, United States Code, may
be established; and
(C) any authority to establish or adjust a human resources
management system under chapter 97 of title 5, United States
Code, shall terminate with respect to covered employees and
covered positions.
(2) Exceptions.--
(A) Pay.--Notwithstanding paragraph (1)(A), the limitation
in that paragraph shall not apply to any personnel management
policy, letter, guideline, or directive of the Administration
relating to annual adjustments to pay schedules and locality-
based comparability payments in order to maintain parity with
those adjustments authorized under sections 5303, 5304,
5304a, and 5318 of title 5, United States Code; and
(B) Additional policy.--Notwithstanding paragraph (1)(B),
new personnel management policy of the Administration may be
issued if--
(i) that policy is needed to resolve a matter not
specifically addressed in policy in effect on that date of
enactment; and
(ii) the Secretary provides that policy, with an
explanation of the necessity of that policy, to the
appropriate congressional committees not later than 7 days
after the date on which the policy is issued.
(C) Emerging threats to transportation security during
transition period.--
(i) In general.--Notwithstanding paragraph (1), any
personnel management policy, letter, guideline, or directive
of the Administration relating to an emerging threat to
transportation security, including national emergencies or
disasters and public health threats to transportation
security, may be modified or established until the conversion
date.
(ii) Submission to congress.--Not later than 7 days after
the date on which any personnel management policy, letter,
guideline, or directive of the Administration is modified or
established under clause (i), the Secretary shall provide to
the appropriate congressional committees that established or
modified policy, letter, guideline, or directive, as
applicable, which shall contain an explanation of the
necessity of that establishment or modification.
(b) Personnel Authorities During Transition Period.--Any
TSA personnel management system in use for covered employees
and covered positions on the day before the date of enactment
of this Act, and any personnel management policy, letter,
guideline, or directive of the Administration in effect on
the day before the date of enactment of this Act, shall
remain in effect until the conversion date.
(c) Transition to Title 5.--
(1) In general.--Except as provided in paragraph (2),
effective beginning on a date determined by the Secretary,
but in no event later than December 31, 2023--
(A) all TSA personnel management systems shall cease to be
in effect;
(B) section 114(n) of title 49, United States Code, is
repealed;
(C) section 111(d) of the Aviation and Transportation
Security Act (Public Law 107-71; 49 U.S.C. 44935 note) is
repealed;
(D) any personnel management policy, letter, guideline, or
directive of the Administration, including the 2022
Determination, shall cease to be effective;
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(E) any human resources management system established or
adjusted under chapter 97 of title 5, United States Code,
with respect to covered employees or covered positions shall
cease to be effective; and
(F) covered employees and covered positions shall be
subject to the provisions of title 5, United States Code.
(2) Chapters 71 and 77 of title 5.--Not later than 90 days
after the date of enactment of this Act--
(A) chapters 71 and 77 of title 5, United States Code,
shall apply to covered employees carrying out screening
functions pursuant to section 44901 of title 49, United
States Code; and
(B) any policy, letter, guideline, or directive issued
under section 111(d) of the Aviation and Transportation
Security Act (49 U.S.C. 44935 note) relating to matters
otherwise covered by chapter 71 or 77 of title 5, United
States Code, shall cease to be in effect.
(3) Assistance of other agencies.--Not later than 180 days
after the date of enactment of this Act, or December 31,
2023, whichever is earlier--
(A) the Director of the Office of Personnel Management
shall establish a position series and classification standard
for the positions of Transportation Security Officer, Federal
air marshal, Transportation Security Inspector, and other
positions requested by the Administrator; and
(B) the National Finance Center of the Department of
Agriculture shall make necessary changes to Financial
Management Services and Human Resources Management Services
to ensure payroll, leave, and other personnel processing
systems for covered employees are consistent with chapter 53
of title 5, United States Code, and provide functions as
needed to implement this subtitle.
(d) Safeguards on Grievances and Appeals.--
(1) In general.--Each covered employee with a grievance or
appeal pending within the Administration on the date of
enactment of this Act or initiated during the transition
period described in subsection (c) may have that grievance or
appeal removed to proceedings pursuant to title 5, United
States Code, or continued within TSA.
(2) Authority.--With respect to any grievance or appeal
continued within the Administration under paragraph (1), the
Administrator may consider and finally adjudicate that
grievance or appeal notwithstanding any other provision of
this subtitle.
(3) Preservation of rights.--Notwithstanding any other
provision of law, any appeal or grievance continued under
this section that is not finally adjudicated under paragraph
(2) shall be preserved and all timelines tolled until the
rights afforded by application of chapters 71 and 77 of title
5, United States Code, are made available under subsection
(c)(2).
SEC. 1094. TRANSITION RULES.
(a) Nonreduction in Pay and Compensation.--Under such pay
conversion rules as the Secretary may prescribe to carry out
this subtitle, a covered employee converted from a TSA
personnel management system to the provisions of title 5,
United States Code, under section 1093(c)(1)(F)--
(1) may not be subject to any reduction in either the rate
of adjusted basic pay payable or law enforcement availability
pay payable to that covered employee; and
(2) shall be credited for years of service in a specific
pay band under a TSA personnel management system as if the
covered employee had served in an equivalent General Schedule
position at the same grade, for purposes of determining the
appropriate step within a grade at which to establish the
converted rate of pay of the covered employee.
(b) Retirement Pay.--
(1) In general.--Not later than 90 days after the date of
enactment of this Act, the Secretary shall submit to the
appropriate congressional committees a proposal, including
proposed legislative changes if needed, for determining the
average pay of any covered employee who retires not later
than 3 years after the conversion date for purposes of
calculating the retirement annuity of the covered employee.
(2) Requirements.--The proposal required under paragraph
(1) shall be structured in a manner that--
(A) is consistent with title 5, United States Code; and
(B) appropriately accounts for the service of a covered
employee to which the proposal applies, and the annual rate
of basic pay of such a covered employee, following the
conversion date.
(c) Limitation on Premium Pay.--
(1) In general.--Notwithstanding section 5547 of title 5,
United States Code, or any other provision of law, a Federal
air marshal or criminal investigator who is appointed to that
position before the date of enactment of this Act may be
eligible for premium pay up to the maximum level allowed by
the Administrator before the date of enactment of this Act.
(2) OPM recognition.--The Director of the Office of
Personnel Management shall recognize premium pay paid
pursuant to paragraph (1) as fully creditable for the
purposes of calculating pay and retirement benefits.
(d) Preservation of Law Enforcement Availability Pay and
Overtime Pay Rates for Federal Air Marshals.--
(1) LEAP.--Section 5545a of title 5, United States Code, is
amended--
(A) in subsection (a)(2), in the matter preceding
subparagraph (A), by striking ``subsection (k)'' and
inserting ``subsection (l)'';
(B) by redesignating subsection (k) as subsection (l); and
(C) by inserting after subsection (j) the following:
``(k) The provisions of subsections (a) through (h)
providing for availability pay shall apply to any Federal air
marshal who is an employee of the Transportation Security
Administration.''.
(2) Overtime.--Section 5542 of title 5, United States Code,
is amended by adding at the end the following:
``(i) Notwithstanding any other provision of law, a Federal
air marshal who is an employee of the Transportation Security
Administration shall receive overtime pay under this section,
at such a rate and in such a manner so that such Federal air
marshal does not receive less overtime pay than such Federal
air marshal would receive were that Federal air marshal
subject to the overtime pay provisions of section 7 of the
Fair Labor Standards Act of 1938 (29 U.S.C. 207).''.
(3) Effective date.--The amendments made by paragraphs (1)
and (2) shall apply beginning on the conversion date.
(e) Collective Bargaining Unit.--Notwithstanding section
7112 of title 5, United States Code, following the
application of chapter 71 of that title pursuant to section
1093(c)(2) of this subtitle, screening agents shall remain
eligible to form a collective bargaining unit.
(f) Preservation of Other Rights.--The Secretary shall take
any actions necessary to ensure that the following rights are
preserved and available for each covered employee beginning
on the conversion date, and for any covered employee
appointed after the conversion date, and continue to remain
available to covered employees after the conversion date:
(1) Any annual leave, sick leave, or other paid leave
accrued, accumulated, or otherwise available to a covered
employee immediately before the conversion date shall remain
available to the covered employee until used, subject to any
limitation on accumulated leave under chapter 63 of title 5,
United States Code.
(2) Part-time screening agents pay premiums under chapter
89 of title 5, United States Code, on the same basis as full-
time covered employees.
(3) Notwithstanding section 6329a of title 5, United States
Code, covered employees are provided appropriate leave during
national emergencies to assist the covered employees and
ensure the Administration meets mission requirements.
(4) Eligible screening agents receive a split-shift
differential for regularly scheduled split-shift work as well
as regularly scheduled overtime and irregular and occasional
split-shift work.
(5) Notwithstanding sections subsections (c), (e), and (f)
of section 5754 of title 5, United States Code, eligible
covered employees receive group retention incentives, as
appropriate.
SEC. 1095. CONSULTATION REQUIREMENT.
(a) Exclusive Representative.--
(1) In general.--
(A) Application.--Beginning on the date that chapter 71 of
title 5, United States Code (referred to in this subsection
as ``chapter 71''), begins to apply to covered employees
under section 1093(c)(2), the labor organization certified by
the Federal Labor Relations Authority on June 29, 2011, or
any successor labor organization, shall be treated as the
exclusive representative of screening agents and shall be the
exclusive representative for screening agents under chapter
71, with full rights under chapter 71.
(B) Rule of construction.--Nothing in this subsection may
be construed to prevent covered employees from selecting an
exclusive representative other than the labor organization
described in paragraph (1) for purposes of collective
bargaining under chapter 71.
(2) National level.--
(A) In general.--Notwithstanding any provision of chapter
71, collective bargaining for any unit of covered employees
shall occur at the national level, but may be supplemented by
local level bargaining and local level agreements in
furtherance of elements of a national agreement or on issues
of any local unit of covered employees not otherwise covered
by a national agreement.
(B) Mutual consent required.--Local-level bargaining and
local-level agreements described in subparagraph (A) shall
occur only by mutual consent of the exclusive representative
of screening agents and the Federal Security Director (or a
designee of such an official) of those screening agents.
(3) Current agreement.--Any collective bargaining agreement
covering such personnel in effect on the date of enactment of
this Act shall remain in effect until a collective bargaining
agreement is entered into under chapter 71, unless the
Administrator and exclusive representative mutually agree to
revisions to such an agreement.
(b) Consultation Process.--
(1) In general.--Not later than 7 days after the date of
enactment of this Act, the Secretary shall consult with the
exclusive representative for the screening agents described
in subsection (a)(1) under chapter 71 of title 5, United
States Code, on the formulation of plans and deadlines to
carry out the conversion, under this subtitle, of those
screening agents.
(2) Written plans.--Before the date that chapter 71 of
title 5, United States Code, begins to apply under section
1093(c)(2), the Secretary shall provide (in writing) to the
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exclusive representative described in paragraph (1) the plans
for how the Secretary intends to carry out the conversion of
covered employees under this subtitle, including with respect
to such matters as--
(A) the anticipated conversion date; and
(B) measures to ensure compliance with sections 1093 and
1094.
(c) Required Agency Response.--If any views or
recommendations are presented under subsection (b) by the
exclusive representative described in that subsection, the
Secretary shall--
(1) consider the views or recommendations before taking
final action on any matter with respect to which the views or
recommendations are presented; and
(2) provide the exclusive representative a written
statement of the reasons for the final actions to be taken.
SEC. 1096. NO RIGHT TO STRIKE.
Nothing in this subtitle may be considered--
(1) to repeal or otherwise affect--
(A) section 1918 of title 18, United States Code (relating
to disloyalty and asserting the right to strike against the
Government); or
(B) section 7311 of title 5, United States Code (relating
to loyalty and striking); or
(2) to otherwise authorize any activity that is not
permitted under a provision of law described in subparagraph
(A) or (B) of paragraph (1).
SEC. 1097. PROPOSAL ON HIRING AND CONTRACTING BACKGROUND
CHECK REQUIREMENTS.
Not later than 1 year after the date of enactment of this
Act, the Secretary shall submit to the appropriate
congressional committees a plan to harmonize and update, for
the purposes of making appointments and for authorizing or
entering into any contract for service, the restrictions
under section 70105(c) of title 46, United States Code,
(relating to the issuance of transportation security cards)
and section 44936 of title 49, United States Code, (relating
to employment investigations and restrictions).
SEC. 1098. COMPTROLLER GENERAL REVIEWS.
(a) Review of Recruitment.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Comptroller General of the United
States shall submit to Congress a report on the efforts of
the Administration regarding recruitment, including
recruitment efforts relating to veterans, the dependents of
veterans, members of the Armed Forces, and the dependents of
such members.
(2) Recruitment.--The report required under paragraph (1)
shall include recommendations regarding how the
Administration may improve the recruitment efforts described
in that paragraph.
(b) Review of Implementation.--The Comptroller General of
the United States shall--
(1) not later than 60 days after the conversion date,
commence a review of the implementation of this subtitle; and
(2) not later than 1 year after the conversion date, submit
to Congress a report on the review conducted under paragraph
(1).
(c) Review of Promotion Policies and Leadership
Diversity.--Not later than 1 year after the date of enactment
of this Act, the Comptroller General of the United States
shall submit to Congress a report--
(1) on the efforts of the Administration to ensure that
recruitment, appointment, promotion, and advancement
opportunities within the Administration are equitable and
provide for demographics among senior leadership that are
reflective of the workforce demographics of the United
States; and
(2) that, to the extent possible, includes--
(A) an overview and analysis of the current (as of the date
on which the report is submitted) demographics of the
leadership of the Administration; and
(B) as appropriate, recommendations to improve appointment
and promotion procedures and diversity in leadership roles,
which may include recommendations for how the Administration
can better promote from within the Administration and retain
and advance covered employees.
(d) Review of Harassment and Assault Policies and
Protections.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, the Comptroller General of the United
States shall submit to Congress a report on the efforts of
the Administration to ensure the safety of the staff of the
Administration with respect to harassment and assault in the
workplace, such as incidents--
(A) of sexual harassment and violence and harassment and
violence motivated by the perceived race, ethnicity,
religion, gender identity, or sexuality of an individual; and
(B) in which the alleged perpetrator is a member of the
general public.
(2) Inclusions.--The report required under paragraph (1)
shall include--
(A) an overview and analysis of the current (as of the date
on which the report is submitted) policies and response
procedures of the Administration;
(B) a detailed description of if, when, and how the
policies described in subparagraph (A) fail to adequately
protect covered employees; and
(C) as appropriate, recommendations for steps the
Administration can take to better protect covered employees
from harassment and violence in the workplace.
(3) Opportunity for comment.--In conducting the review
required under this subsection, the Comptroller General of
the United States shall provide opportunities for covered
employees of all levels and positions, and labor
organizations and associations representing those covered
employees, to submit comments, including in an anonymous
form, and take those comments into account in the final
recommendations of the Comptroller General.
SEC. 1099. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) TSA personnel management systems provide insufficient
benefits and workplace protections to the workforce that
secures the transportation systems of the United States;
(2) covered employees should be provided protections and
benefits under title 5, United States Code; and
(3) the provision of the protections and benefits described
in paragraph (2) should not result in a reduction of pay or
benefits to current covered employees.
SEC. 1099A. ASSISTANCE FOR FEDERAL AIR MARSHAL SERVICE.
The Administrator shall communicate with organizations
representing a significant number of Federal air marshals, to
the extent provided by law, to address concerns regarding
Federal Air Marshals related to the following:
(1) Mental health.
(2) Suicide rates.
(3) Morale and recruitment.
(4) Equipment and training.
(5) Work schedules and shifts, including mandated periods
of rest.
(6) Any other personnel issues the Administrator determines
appropriate.
SEC. 1099B. STUDY ON FEASIBILITY OF COMMUTING BENEFITS.
(a) In General.--Not later than 270 days after the date of
enactment of this Act, the Administrator shall submit to the
appropriate congressional committees a feasibility study on
allowing covered employees carrying out screening functions
under section 44901 of title 49, United States Code, to treat
as hours of employment time spent by those covered employees
regularly traveling between parking lots and bus and transit
stops of airports and screening checkpoints before and after
the regular work day.
(b) Considerations.--In conducting the study required under
subsection (a), the Administrator shall consider--
(1) the amount of time needed to travel to and from parking
lots and bus and transit stops of airports at small hub
airports, medium hub airports, and large hub airports, as
those terms are defined in section 40102 of title 49, United
States Code;
(2) the feasibility of using mobile phones and location
data to allow covered employees to report their arrival to
and departure from parking lots and bus and transit stops of
airports; and
(3) the estimated costs of treating the amount of time
described in paragraph (1) as hours of employment time spent.
SEC. 1099C. BRIEFING ON ASSAULTS AND THREATS ON TSA
EMPLOYEES.
Not later than 90 days after the date of enactment of this
Act, the Administrator shall brief the appropriate
congressional committees regarding the following:
(1) Reports to the Administrator of instances of physical
or verbal assaults or threats made by members of the general
public against screening agents since January 1, 2019.
(2) Procedures for reporting the assaults and threats
described in paragraph (1), including information on how the
Administrator communicates the availability of those
procedures.
(3) Any steps taken by the Administration to prevent and
respond to the assaults and threats described in paragraph
(1).
(4) Any related civil actions and criminal referrals made
annually since January 1, 2019.
(5) Any additional authorities needed by the Administrator
to better prevent or respond to the assaults and threats
described in paragraph (1).
SEC. 1099D. ANNUAL REPORTS ON TSA WORKFORCE.
Not later than 1 year after the date of enactment of this
Act and annually thereafter, the Administrator shall submit
to the appropriate congressional committees a report that
contains the following:
(1) An analysis of the Federal Employee Viewpoint Survey of
the Office of Personnel Management to determine job
satisfaction rates of covered employees.
(2) Information relating to retention rates of covered
employees at each airport, including transfers, in addition
to aggregate retention rates of covered employees across the
workforce of the Administration.
(3) Information relating to actions taken by the
Administration intended to improve workforce morale and
retention.
SEC. 1099E. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as may be
necessary, to remain available until expended, to carry out
this subtitle and the amendments made by this subtitle.
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