[House Report 111-273]
[From the U.S. Government Publishing Office]


111th Congress                                            Rept. 111-273
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 1

======================================================================



 
       TRANSPORTATION SECURITY WORKFORCE ENHANCEMENT ACT OF 2009

                                _______
                                

 September 29, 2009.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Thompson of Mississippi, from the Committee on Homeland Security, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1881]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security, to whom was referred 
the bill (H.R. 1881) to enhance the transportation security 
functions of the Department of Homeland Security by providing 
for an enhanced personnel system for employees of the 
Transportation Security Administration, and for other purposes, 
having considered the same, report favorably thereon without 
amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
      Purpose and Summary.............................................2
      Background and Need for Legislation.............................2
      Hearings........................................................4
      Committee Consideration.........................................4
      Committee Votes.................................................4
      Committee Oversight Findings....................................5
      New Budget Authority, Entitlement Authority, and Tax Expenditure5
      Congressional Budget Office Estimate............................5
      Statement of General Performance Goals and Objectives...........7
      Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
      Benefits........................................................8
      Federal Mandates Statement......................................8
      Advisory Committee Statement....................................8
      Constitutional Authority Statement..............................8
      Applicability to Legislative Branch.............................8
      Section-by-Section Analysis of the Legislation..................8
      Changes in Existing Law Made by the Bill, as Reported..........12
      Minority Views.................................................14

                          Purpose and Summary

    The purpose of H.R. 1881 is to enhance the transportation 
security functions of the Department of Homeland Security by 
providing for an enhanced personnel system for employees of the 
Transportation Security Administration, and for other purposes.

                  Background and Need for Legislation

    In 2001, when the Transportation Security Administration 
(TSA) was created, Congress provided discretionary authority to 
the new agency to create different personnel systems--each with 
different rights and protections--for different classes of 
employees. Specifically, in the Aviation and Transportation 
Security Act (ATSA) (P.L. 107-71), the 107th Congress and 
President George W. Bush gave the TSA Administrator the 
discretionary authority to create a new personnel system to 
recruit and expedite the hiring of a new Federal transportation 
screening workforce in the aftermath of the terrorist attacks 
of September 11, 2001. Over the past eight years, the exercise 
of this discretionary authority resulted in two different 
personnel systems being established at TSA: one for the non-
screening workforce and one for the screening workforce.
    Today, while some TSA employees are subject to the civil 
service policies and protections based on those that are 
provided to the Federal Aviation Administration employees (TSA 
was housed at the Department of Transportation before moving to 
the Department of Homeland Security (DHS)), most of TSA's 
workforce--the Transportation Security Officers (TSOs; i.e., 
screeners)--are subject to different conditions and benefits of 
employment, discipline, compensation, leave, and other basic 
employment rights including whistleblower protections. Notably, 
the whistleblower protections and collective bargaining rights 
furnished to TSOs differ from those provided to other TSA 
personnel and most other DHS employees.
    The Committee has received testimony, as recently as March 
2009, that while the exercise of discretionary authority helped 
quickly establish TSA, as intended by the 107th Congress, the 
resulting personnel system continues to be a major source for 
low employee morale and, in turn, stands in the way of TSA 
achieving its full potential as a security agency. Low morale 
has translated into high attrition rates--both voluntary and 
involuntary--at TSA. In fact, for Fiscal Year 2008, TSA 
experienced attrition rates among entry-level employees in the 
screening workforce of nearly 43 percent for part-time 
employees and 26 percent for full-time employees.
    Past DHS, Office of Personnel Management (OPM), and 
internal TSA workforce survey results, an Office of Inspector 
General report, and Congressional testimony over the past 
several years depict the TSA workforce as frustrated with the 
lack of recognition for performance and the Agency's promotion 
practices and confused by different policies and procedures on 
leave, training, and other administrative matters. There is 
evidence this frustration and confusion stems in part by 
different rights and protections and pay tied to performance 
for the TSO workforce, specifically. A significant portion of 
the TSA workforce is subject to the Performance Accountability 
and Standards System (PASS) which is TSA's primary system for 
evaluating worker performance. While the training, objective 
testing, and competencies appear to have some merit, there is 
significant concern that the system lacks transparency and is 
vulnerable to subjective judgments that, in turn, impact pay 
and advancement.
    Since the establishment of TSA, Democratic Members of the 
Committee on Homeland Security have expressed concerns about 
granting TSA the discretionary authority to establish its own 
personnel systems. In the 110th Congress, Committee on Homeland 
Security Chairman Bennie G. Thompson (D-MS) authored critical 
legislation that gave a broad range of rights to the TSA 
workforce including collective bargaining rights (H.R. 1, 
Implementing the Recommendations of the 9/11 Commission Act of 
2007). On January 9, 2007, the House of Representatives 
approved H.R. 1 with this important language. On March 13, 
2007, the Senate approved homeland security legislation with 
similar language to provide rights to TSA's workforce (S. 4). 
In the end, however, under pressure from then-President George 
Bush to eliminate the language or risk a veto on the critical 
homeland security package, Congress was forced to strike this 
provision in the final conference report (P.L. 110-53). 
Following the omission of the critical provision in the final 
product, Representative Nita M. Lowey (D-NY) introduced free-
standing legislation to provide rights and protections to the 
TSA workforce in August 2007 (H.R. 3212).
    In October 2008, then-Senator Barack Obama (D-IL) sent a 
letter to American Federation of Government Employees (AFGE) 
President John Gage, in which Mr. Obama pledged to ``work to 
ensure that TSOs have collective bargaining rights and a voice 
at work to address issues that arise locally and nationally.'' 
Senator Obama further stated, that ``[a]dvocating for TSOs to 
receive collective bargaining rights and workplace protections 
will be a priority for my administration. It is unacceptable 
for TSOs to work under unfair rules and without workplace 
protections--this makes it more difficult for them to perform 
their jobs.''
    On March 5, 2009, the Subcommittee on Management, 
Investigations, and Oversight of the Committee on Homeland 
Security received testimony that the TSA workforce is not 
allowed to collectively bargain, in contrast with the Customs 
and Border Protection (CBP) workforce (both Customs and Border 
Protection Officers and Border Patrol agents), and other law 
enforcement and non-law enforcement workers across the Federal 
government and state and local governments. Through the 
Committee's oversight work, including meetings with TSOs, it is 
evident that without robust Federal worker protections and 
collective bargaining rights, TSA cannot achieve its full 
potential as a security agency. The Committee specifically 
found that a lack of standard whistleblower protections and 
collective bargaining rights, such as those available within 
Customs and Border Protection (CBP), does not enhance 
transportation security operations, as it fosters attrition and 
a demoralized workforce. On several occasions TSOs have taken 
risks to report waste, fraud, and abuse occurring on their 
watch at TSA while fearing the loss of their job or 
retaliation. A system should be in place where employees are 
able to report waste, fraud, abuse, and security gaps without 
the fear of reprisal. (Without these basic protections there is 
a disincentive to report offenses or security vulnerabilities.) 
The absence of these rights and protections is clearly 
counterproductive to the Nation's transportation security.
    On April 2, 2009, Rep. Lowey, together with 17 other 
Members, including Reps. Thompson of Mississippi, Jackson-Lee 
of Texas, and Carney, introduced H.R. 1881, the 
``Transportation Workforce Enhancement Act of 2009.'' H.R. 1881 
renews and improves upon past Committee efforts by increasing 
the quality of the entire TSA workforce including the TSOs, 
Behavior Detection Officers, Bomb Appraisal Officers, Federal 
Air Marshals, TSO supervisors, headquarters and field staff 
throughout the country. Providing basic employment protections 
and rights is critical to instill confidence in the workforce. 
Moreover, the bill will enhance the security operations of TSA 
by improving workforce morale and employee retention, put 
workers in a position to expose security gaps without fear of 
losing their jobs, and put TSA employees on par with those in 
other DHS components.

                                Hearings

    Although there was not a specific legislative hearing on 
H.R. 1881, on March 5, 2009, the Subcommittee on Management, 
Investigations, and Oversight held an oversight hearing on the 
personnel systems and workforce at the Department of Homeland 
Security that focused on the Transportation Security 
Administration entitled ``Putting People First: A Way Forward 
for the Homeland Security Workforce.'' The Subcommittee 
received testimony from Ms. Colleen M. Kelley, National 
President, National Treasury Employees Union; Mr. John Gage, 
National President, American Federation of Government 
Employees, AFL-CIO; Ms. Carol A. Bonosaro, President, Senior 
Executives Association; and Mr. Max Stier, President and CEO, 
Partnership for Public Service.

                        Committee Consideration

    The Committee on Homeland Security met, pursuant to notice, 
in open markup session, a quorum being present, on Thursday, 
July 9, 2009, to consider H.R. 1881. The Committee took the 
following actions:
    H.R. 1881, ``To enhance the transportation security 
functions of the Department of Homeland Security by providing 
for an enhanced personnel system for employees of the 
Transportation Security Administration, and for other 
purposes.''; was ordered to be reported to the House with a 
favorable recommendation, without amendment, by voice vote.
    The Committee adopted the bill by a recorded vote of 13 
yeas and 6 nays (Roll Call Vote No. 16).

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto.
    The Committee on Homeland Security considered H.R. 1881 on 
July 9, 2009, and ordered the measure reported to the House 
with a favorable recommendation, without amendment, by VOICE 
VOTE.
        The Committee adopted H.R. 1881 by a recorded vote of 
        13 yeas and 6 nays (Roll Call Vote No. 16). The vote 
        was as follows:
        YEAS                          NAYS
Mr. Thompson                        Mr. King
Ms. Sanchez                         Mr. Rogers
Ms. Harman                          Mr. Dent
Mr. DeFazio                         Mr. Bilirakis
Ms. Norton                          Mr. Broun
Mr. Cuellar                         Mr. Olson
Mr. Carney
Ms. Clarke
Ms. Richardson
Mr. Cleaver
Mr. Green
Mr. Himes
Ms. Kilroy

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee has held oversight 
hearings and made findings that are reflected in this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

     In compliance with clause 3(c)(2) of rule XIII of the 
Rules of the House of Representatives, the Committee finds that 
H.R. 1881, the ``Transportation Security Workforce Enhancement 
Act of 2009'', would result in no new or increased budget 
authority, entitlement authority, or tax expenditures or 
revenues.

                  Congressional Budget Office Estimate

     The Committee adopts as its own the cost estimate prepared 
by the Director of the Congressional Budget Office pursuant to 
section 402 of the Congressional Budget Act of 1974.

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 31, 2009.
Hon. Bennie G. Thompson,
Chairman, Committee on Homeland Security
Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1881, the 
Transportation Security Workforce Enhancement Act of 2009.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Barry Blom.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 1881--Transportation Security Workforce Enhancement Act of 2009

    Summary: H.R. 1881 would repeal the authority of the 
Transportation Security Administration (TSA) to establish or 
modify a personnel management system for its employees. 
Instead, those employees would become subject to the provisions 
of title 5, United States Code, and other civil service laws 
that apply to employees and positions within most other 
executive branch agencies, including the right to collective 
bargaining. Under the bill, the Secretary of Homeland Security 
would have to announce, within 14 days after enactment, plans 
for carrying out the conversion. Further, the bill would 
require the Secretary to permit a qualified labor organization 
to comment on those plans and to consider and respond to those 
comments. The conversion would have to be completed within 60 
days of enactment.
    Based on information from TSA and the Office of Personnel 
Management (OPM), and subject to the appropriation of the 
necessary amounts, CBO estimates that implementing H.R. 1881 
would cost about $690 million over the 2010-2014 period. That 
estimate includes the costs of higher salaries likely to be 
paid to some employees under the General Schedule (GS) and the 
costs of creating a labor relations program, which include the 
expenses to hire necessary employees and retrain current 
employees to operate with a workforce that includes collective 
bargaining units. Enacting H.R. 1881 would not affect direct 
spending or revenues.
    H.R. 1881 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 1881 is shown in the following table. 
The costs of this legislation would fall within budget function 
400 (transportation).

----------------------------------------------------------------------------------------------------------------
                                                         By fiscal year, in millions of dollars--
                                         -----------------------------------------------------------------------
                                             2010        2011        2012        2013        2014      2010-2014
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Impact on Salaries of Moving to the
 General Schedule:
    Estimated Authorization Level.......         104         129         131         133         134         631
    Estimated Outlays...................         100         128         131         133         134         626
Impact of Implementing Collective
 Bargaining:
    Estimated Authorization Level.......          12          12          13          13          13          63
    Estimated Outlays...................          11          12          13          13          13          61
Total Changes:
    Estimated Authorization Level.......         116         141         144         146         147         694
    Estimated Outlays...................         111         140         144         145         147         687
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that H.R. 
1881 will be enacted near the end of 2009, that the conversion 
will require the full 60 days allowed under the bill, and that 
the necessary amounts for implementing it will be appropriated 
each year.
    The legislation would make several changes to current law 
related to the personnel system for TSA employees. The costs of 
converting from the TSA personnel system to the General 
Schedule depend in large part on how employees are classified 
under GS pay grades. Because TSA positions have never been part 
of the General Schedule, there is considerable uncertainty as 
to how the roughly 60,000 positions currently under that pay 
system would ultimately be assigned within the GS system and, 
hence, considerable uncertainty as to the cost of the 
conversion. For the purposes of this estimate, CBO estimates 
that the reclassification would result in many employees, 
particularly the approximately 50,000 employees in the lower 
four pay bands of the current system, receiving a salary 
increase under the bill. Based on discussions with OPM and TSA, 
CBO has assumed that the 36,000 employees in the bottom two 
bands of TSA's current pay system would be classified at 
various steps within the GS-5 pay grade. Using data on salary 
and length of service (which employees are credited with for 
purposes of determining pay under the bill) provided by OPM, 
CBO estimates the conversion would result in an average salary 
increase of about $1,700 for those employees. Employees in the 
next two pay bands with jobs requiring additional 
responsibilities and duties would be classified at higher pay 
grades and also would receive a salary increase as a result. As 
stated in H.R. 1881, no employee would suffer a reduction in 
pay. In total, CBO estimates that moving to the General 
Schedule would increase outlays by $100 million in 2010 and 
$626 million over the 2010-2014 period, assuming appropriation 
of the necessary amounts.
    CBO expects that, under H.R. 1881, the agency also would 
incur costs starting in 2010 to move from its current personnel 
system to a system based on collective bargaining, particularly 
to hire specialists in labor relations. Based on information 
provided by other federal agencies on the costs to support 
personnel systems that allow collective bargaining, as well as 
information provided by TSA, CBO estimates that such costs 
would total $11 million in 2010 and $61 million over the five-
year period, assuming appropriation of the necessary amounts.
    CBO cannot estimate the impact of potential changes in 
TSA's spending that might result from future negotiations with 
labor groups. Although those costs could be significant, 
particularly in future years, CBO has not included any such 
changes in this estimate.
    Intergovernmental and private-sector impact: H.R. 1881 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Estimate prepared by: Federal Costs: Barry Blom; Impact on 
State, Local, and Tribal Governments: Ryan Miller; Impact on 
the Private Sector: Jacob Kuipers.
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

         Statement of General Performance Goals and Objectives

     Pursuant to clause 3(c)(4) of rule XIII of the Rules of 
the House of Representatives, H.R. 1881 contains the following 
general performance goals, and objectives, including outcome 
related goals and objectives authorized: To authorize 
appropriations to ensure an enhanced personnel system for 
employees of the Transportation Security Administration (TSA) 
of the Department of Homeland Security; to terminate certain 
personnel authorities and flexibilities provided to the 
Assistant Secretary of TSA and replace those authorities with 
the same personnel management system that applies to civil 
service employees under Title V of the United States Code; 
implement clear guidelines and requirements for the transition 
to the new personnel system; and provide for a transition that 
is inclusive and transparent to all employees while maintaining 
the personnel flexibilities that are needed by TSA.

   Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
                                Benefits

     In compliance with rule XXI of the Rules of the House of 
Representatives, this bill, as reported, contains no 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of the rule 
XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for this legislation is provided in 
Article I, section 8, clause 1, which grants Congress the power 
to provide for the common Defense of the United States.

                  Applicability to Legislative Branch

     The Committee finds that the legislation does not relate 
to the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation


Section 1.   Short Title

    This section provides that H.R. 1881 may be cited as the 
``Transportation Security Workforce Enhancement Act of 2009'', 
as well as a table of contents.

Section 2.   Definitions

    This section defines the terms for purposes of this Act 
only to include: ``covered position''; ``covered employee''; 
``employee''; ``Secretary''; ``Assistant Secretary''; ``TSA 
personnel management system''; ``agency''; and ``conversion 
date.''
    As defined by the Act, ``covered position'' is intended to 
mean any position within the Transportation Security 
Administration (TSA) or the Department of Homeland Security 
that involves carrying out the duties as outlined in the 
Aviation and Transportation Security Act (ATSA) or in 
furtherance of transportation security; this includes positions 
such as Transportation Security Officers (TSOs), front-line 
supervisors, Federal Air Marshals, Behavior Detection Officers, 
Bomb Appraisal Officers, administrative staff, and all other 
employees of the TSA.
    Further, the term ``TSA personnel management system'' means 
the personnel management system or systems as established under 
statute in Title 49, Section 114(n) of the U.S. Code and any 
modifications to those systems. In addition, Title 49 of US 
Code 44935 note, referred to as the ``footnote'', as 
established in section 111(d) in ATSA that provides the 
Assistant Secretary the authority to set the terms and 
conditions of employment for TSOs, shall also be considered 
part of the TSA personnel management system since it provides 
discretionary authority to the Assistant Secretary to amend the 
personnel system for TSOs as he or she sees fit.
    The Committee believes it is essential to define these 
terms in order to clearly articulate the individuals this 
legislation would affect and impact, the parameters of the 
current TSA personnel system and other matters.

Section 3.   Conversion of Transportation Security Personnel

    This section terminates the authorities provided to the 
Assistant Secretary in Title 49 of U.S. Code 44935 note, as 
established in section 111(d) of Aviation and Transportation 
Security Act (ATSA) to set the terms and condition of 
employment for the screener workforce; further, the bill 
strikes the personnel system under section 114(n) of Title 49 
of U.S. Code as established by ATSA, effective 60 days from 
date of enactment.
    This section directs that 60 days from the date of 
enactment all Transportation Security Administration (TSA) 
employees will be governed by Title V of the United States 
Code, except for Chapter 97, similar to the same personnel 
system as other Department of Homeland Security (DHS) 
employees. This transition to a system under Title V would mean 
the employees are subjected to the same protections of the 
Federal civil service system, including the right to collective 
bargaining, compensation, leave, health, and other employee 
rights. It is the intent of the Committee all TSA employees 
receive the legal obligations and protections afforded to other 
government employees through other laws, including but not 
limited to the: Federal Labor Standards Act, Veterans' 
Preference Act, Equal Pay Act, Age Discrimination in Employment 
Act and the Rehabilitation Act, among others. Further, the 
Committee intends that DHS could and should consult with the 
Office of Personnel Management (OPM) or any other applicable 
government entity, should DHS need to do so. But, such 
consultation is not required, and should only be sought if 
doing so will not delay implementation and conversion of 
employees. Furthermore, the Committee intends for DHS to use 
current OPM guidelines governing personnel and compensation and 
believes that using such guidelines may alleviate the need to 
consult OPM.
    The Committee recognizes that while discretionary authority 
helped quickly establish TSA, as intended by the 107th 
Congress, it was, and continues to be a major source for low 
employee morale and therefore hinders TSA from attaining its 
full potential as a security agency. There is extensive 
information that shows that the TSA workforce continues to be 
frustrated and confused by evolving personnel policies 
including a pay-for-performance system that is prone to 
subjective judgments and opens the door to unfair work 
practices and promotions. TSA needs a transparent and fair 
system in place--and time-tested civil service system under 
Title V of the United States Code will put some stability in 
place for TSA and improve morale, dissatisfaction and improve 
high attrition rates.
    As outlined by this section, no later than 60 days from the 
date of enactment all TSA employees will be governed and 
subject to Title V of the United States Code, except for 
Chapter 97, and be covered by the same personnel system as 
other DHS employees. The Committee recognizes that the timeline 
set forth is narrow but believes that it can be accomplished 
within this period. It is the Committee's intent that this 
transition would put the employees on the same footing as their 
colleagues and ensure that they have the same rights and 
protections afforded to them as their colleagues. These rights 
and benefits include compensation under the general schedule, 
leave, health and life insurance, whistleblower protections, 
labor management relations and the right to collectively 
bargain all under Title V of the United States Code, and the 
laws that govern the Federal workforce such as the 
Rehabilitation Act, the Civil Service Reform Act, the Veteran's 
Preference Act, the Uniformed Services Employment and 
Reemployment Act, and the Fair Labor Standards Act.

Section 4.   Transition Rules

    This section provides guidance for the transition to Title 
V of the United States Code and preserves employee pay, leave 
and health benefits. This section also states that nothing in 
this Act shall affect any administrative or judicial proceeding 
commenced before the date of the enactment of this Act.
    Specifically, the Committee included this provision to 
ensure no Transportation Security Administration (TSA) employee 
in the conversion to the Title V system would experience a loss 
of compensation. Further, the section was also included to 
guarantee the preservation of other rights that those employees 
are currently receiving such as length of service for purpose 
of governing leave, pay, life and health insurance, tenure and 
status. Further, the Committee intends for all leave--annual, 
sick or other paid leave--that is accumulated to be available 
to the employee as long as they are continuously employed by 
the Department of Homeland Security. This section also 
preserves the full time contribution to the Federal employee 
health benefit and ensures that employees who enjoy this 
benefit now will continue to receive that contribution under 
the new system.
    The Committee recognizes that the TSA currently offers a 
full time contribution to the Federal employee health benefit 
program to part time employees. It is desire of the Committee 
that employees that currently receive this benefit will 
continue to receive that contribution during the transition and 
under the new personnel system.

Section 5.   Consultation Requirement

     This section provides that during the 60 day transition 
period to the civil service system, there will be a 
consultation requirement between the Assistant Secretary and 
the employees through their qualified labor organizations. A 
qualified labor organization, for purposes of this consultation 
period only, meets the definition of a labor organization under 
Chapter 71 of Title V, United States Code and has at least 1000 
covered employees who pay dues to the organization.
    Specifically, within 14 days after the date of enactment a 
qualified labor organization shall be informed of the 
Secretary's plans to carry out the conversation of the covered 
employees to include a proposed date and the measures to ensure 
the non-reduction in compensation and protection of other 
benefits and leave. Further, within the 14 days, the labor 
organization will have an opportunity to present its views and 
recommendations upon learning the Secretary's plans. The 
Secretary is required to consider the views and recommendations 
of the labor organization before taking final action and also 
provide the labor organization with a statement of the reasons 
for the final actions and plans to be executed. The 
consultation requirement provides that employees and their 
representatives may stay informed during the transition process 
and provides an opportunity for the employees and their 
representative to present their views and recommendations to 
the Assistant Secretary on the transition plan. The Secretary 
is required to consider the recommendations and provide a 
statement and reason for the final actions being taken.
    It is the Committee's desire that this consultation 
requirement be an avenue for employees to be engaged in the 
transition and its planning as they move towards to the new 
system. The Committee established parameters for a qualified 
labor organization for a limited purpose-to ensure consultation 
during the 60 day transition period only. The Committee does 
not intend for the consultation requirement to impact or 
override the exclusive bargaining recognition or labor 
management relations under Chapter 71 of Title V of the United 
States Code or any other provision of law. Further, the 
provisions of the section sunset and will no longer be 
effective as of the conversion date to the new personnel 
system. The Committee intends as stated previously, that the 
Department of Homeland Security (DHS) could consult with the 
Office of Personnel Management (OPM) or any other applicable 
government entity, should DHS wish to do so. But, such 
consultation is not required, provided that OPM guidelines 
governing personnel and compensation are used.

Section 6.   No Right To Strike

    This section restates current law that nothing in this Act 
would provide Transportation Security Administration (TSA) 
employees with the right to strike. Under current Federal 
criminal law, no Federal employee shall strike against the 
United States Government.
    The Committee included this provision to emphasize that no 
Federal employee has the right to strike. The Committee 
believes that this section, as a restatement of current law, is 
necessary to resolve concerns expressed by the Conference 
Committee in its report accompanying the Aviation and 
Transportation Security Act (ATSA) in 2001 as well as concerns 
raised by Members and other stakeholders. Specifically, the 
Conference Committee noted that ``[t]he participants in this 
Federal security workforce will not be able to strike or engage 
in work stoppages[.]'' The Committee supports this position and 
believes it is consistent with the provision of collective 
bargaining rights.

Section 7.   Regulations

    This section provides the Secretary of the Department of 
Homeland Security the authority to prescribe any regulations 
necessary to carry out this Act.

Section 8.   Delegations to Assist Secretary

    This section provides the Secretary the authority to 
delegate any authorities or functions necessary to fulfill this 
act to the Assistant Secretary.
    The Committee believes that the Assistant Secretary is best 
suited to advise the Secretary in ways to appraise, evaluate, 
and plan for this transition, and identify the positions that 
are impacted by it, given the Assistant Secretary's knowledge 
of the Transportation Security Administration's (TSA) missions 
and operations.

Section 9.   Authorization of Appropriations

    This section authorizes the appropriation of such sums 
necessary to carry out the Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets and 
existing law in which no change is proposed is shown in roman):

AVIATION AND TRANSPORTATION SECURITY ACT

           *       *       *       *       *       *       *


TITLE I--AVIATION SECURITY

           *       *       *       *       *       *       *


SEC. 111. TRAINING AND EMPLOYMENT OF SECURITY SCREENING PERSONNEL.

  (a) * * *
  [(d) Screener Personnel.--Notwithstanding any other provision 
of law, the Under Secretary of Transportation for Security may 
employ, appoint, discipline, terminate, and fix the 
compensation, terms, and conditions of employment of Federal 
service for such a number of individuals as the Under Secretary 
determines to be necessary to carry out the screening functions 
of the Under Secretary under section 44901 of title 49, United 
States Code. The Under Secretary shall establish levels of 
compensation and other benefits for individuals so employed.]

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                              ----------                              


TITLE 49, UNITED STATES CODE

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SUBTITLE I--DEPARTMENT OF TRANSPORTATION

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CHAPTER 1--ORGANIZATION

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Sec. 114. Transportation Security Administration

  (a) * * *

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  [(n) Personnel Management System.--The personnel management 
system established by the Administrator of the Federal Aviation 
Administration under section 40122 shall apply to employees of 
the Transportation Security Administration, or, subject to the 
requirements of such section, the Under Secretary may make such 
modifications to the personnel management system with respect 
to such employees as the Under Secretary considers appropriate, 
such as adopting aspects of other personnel systems of the 
Department of Transportation.]

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                             MINORITY VIEWS

    While Republican Members of the Committee on Homeland 
Security join our Democratic colleagues in supporting the 
hardworking employees of the Transportation Security 
Administration (TSA), we oppose Committee action on H.R. 1881 
for a number of reasons.
Absence of a permanent TSA Administrator
    This is the third time in as many months that the Majority 
has insisted on meeting to report legislation upon which the 
Department of Homeland Security cannot comment because the 
relevant senior official has not yet been confirmed by the 
Senate. The Committee adopted the Transportation Security 
Administration Authorization Act (H.R. 2200) on May 14, 2009. 
H.R. 2200 was subsequently passed by the House on June 4, 2009. 
However, TSA was not able to comment on the bill because 
President Obama has not yet nominated an Administrator. The 
Committee also adopted the Chemical Facility Anti-Terrorism Act 
of 2009 (H.R. 2868) on June 23, 2009. The Department's National 
Protection and Programs Directorate was not able to take a 
position on the bill because Mr. Rand Beers, the President's 
nominee for Under Secretary for National Protection and 
Programs, had not yet been confirmed, nor has an Assistant 
Secretary for Infrastructure Protection been appointed.
    With action on H.R. 1881, the Majority is continuing to 
force legislative directives on the Administration and the 
Department of Homeland Security without first receiving 
official input on the bills from the impacted agency or 
allowing Secretary Napolitano to have her team in place. 
Interestingly, however, the Committee will not consider an 
authorization bill for the Science and Technology Directorate 
and the Domestic Nuclear Detection Office in July, as the 
Majority previously planned, because they now prefer to wait 
until Dr. Tara O'Toole is confirmed as the Under Secretary for 
Science and Technology. This begs the question: Why wouldn't 
the Committee also wait for the nomination and confirmation of 
a TSA Administrator before considering a bill that makes 
sweeping changes to TSA's personnel management system and 
directly affects the Administrator's authorities?
The TSA Administrator's current authority
    The TSA Administrator already has the authority under 
current law to make changes to TSA's personnel management 
system, including providing collective bargaining rights to TSA 
screeners. The Aviation and Transportation Security Act 
provides the Administrator with great discretion in setting the 
employment terms of screeners. Nothing in current law prevents 
Acting TSA Administrator Gail Rossides, or her successor, from 
changing TSA's personnel management system or providing 
collective bargaining rights to screeners. In fact, Acting 
Administrator Rossides could choose to implement the provisions 
of H.R. 1881. However, it could be argued that passing this 
legislation serves to diminish the Administrator's authority 
because it prescribes the system the Administrator must 
implement, and therefore eliminates the Administrator's current 
flexibility to implement a system of his or her choosing.
Elimination of pay-for-performance
    On May 27, 2009, President Obama's new Director of the 
Office of Personnel Management, Mr. John Berry, announced that 
President Obama plans to institute a pay-for-performance system 
in the Federal workplace. The Performance Accountability and 
Standards System (PASS), TSA's current personnel management 
system, is a flexible and dynamic system that recognizes 
employees for their on the job performance. In Fiscal Year 
2008, 99% of the employees covered by PASS received bonuses in 
addition to their yearly cost of living increase because they 
achieved TSA's high screening standards, with some employees 
receiving salary increases in addition to these bonuses. The 
potential for bonuses and salary increases serves as incentive 
to TSA screeners to strive to exceed TSA's screening standards.
    Republican Members of the Committee on Homeland Security 
support the President's interest in ensuring the Federal 
Government has a personnel system able to meet the challenges 
of the 21st Century and support PASS, which is already paying 
employees for their performance. H.R. 1881 is contrary to the 
Obama Administration's stated goal, and converts TSA to Title 
5, which Director Berry has called ``straining and . . . 
balkanized to the point that it risks failure.''
Security concerns
    Republican Members of the Committee are also concerned with 
the security implications posed by providing collective 
bargaining to Transportation Security Officers (TSOs). 
Currently, the TSA Administrator is able to exercise 
flexibility in the event of an emerging threat. For example, 
during the August 2006 liquid bombing plot, the Administrator 
was able to reconfigure screening operations quickly and adapt 
the items the screeners were looking for to respond to the 
threat. In addition, the Administrator forward deployed TSOs to 
London to assist with passenger screening operations. There is 
concern that this flexibility and security would be hampered in 
the event of the next plot if the Administrator is not able to 
quickly make changes to screening operations to respond to an 
impending threat. In fact, in March 2007 testimony before the 
Senate Homeland Security and Governmental Affairs Committee on 
TSA's personnel flexibilities, then-Administrator Kip Hawley 
stated that ``[t]his flexibility is key to how DHS, through 
TSA, protects Americans while they travel, both at home and 
abroad.'' He also noted that provisions to eliminate this 
flexibility ``would significantly diminish TSA's ability to 
respond quickly to security threats and would ultimately reduce 
transportation security.''
    For these reasons, the Republican Members of the Committee 
reluctantly oppose H.R. 1881.
                                   Peter T. King.
                                   Lamar Smith.
                                   Mark Souder.
                                   Mike Rogers.
                                   Michael T. McCaul.
                                   Charles W. Dent.
                                   Gus M. Bilirakis.
                                   Paul C. Broun.
                                   Pete Olson.
                                   Anh ``Joseph'' Cao.
                                   Steve Austria.

                                  
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