Transportation Security Administration Personnel System

3/05/2007

Senate Homeland Security And Governmental Affairs Committee Subcommittee On Oversight Of Government Management, The Federal Workforce And The District Of Columbia

Chairman Akaka, Ranking Member Voinovich, distinguished members of the Subcommittee; I would like to thank the subcommittee for the opportunity to testify on the extension of collective bargaining rights to the employees at the Transportation Security Administration (TSA). As President of the National Treasury Employees Union (NTEU), I have the honor of representing 150,000 federal employees including over 15,000 federal employees in the Department of Homeland Security (DHS). These Customs and Border Protection Officers (CBPOs) are firearms-carrying law enforcement officers trained at the Federal Law Enforcement Officer Training Center and serve on the frontline of our nation’s efforts to protect our borders at our land, sea and air ports of entry.

NTEU-represented Customs and Border Protection (CBP) employees have had an exemplary record in performing layered enforcement activities to prevent the entry of terrorists and instruments of terror, harmful pests and diseases, illegal drugs and contraband, and illegal aliens as well as other importations and exportations contrary to law and trade agreements. And they have collective bargaining rights. It was, in fact, an NTEU member who detected and apprehended the millennium bomber, Ahmed Ressam, at Port Angeles, Washington and prevented a potentially devastating terrorist New Year’s Day attack on the Los Angeles International Airport in 2001.

It is also important to note that where a pilot program has allowed private sector workers to perform the TSO job, the National Labor Relations Board has ruled that these private sector workers may organize and bargain collectively.

On June 28, 2006, the National Labor Relations Board (Board), in a 4-1 decision involving Firstline Transportation Security, found that Firstline, a private company that provides passenger and baggage screening services at Kansas City International Airport in Kansas City, Missouri, pursuant to a contract with TSA, is subject to the Board’s jurisdiction and can organize for the purpose of bargaining collectively with their employer.

The Board also concluded that this is not incompatible with the interests of national security. As the majority stated:

The Board has been confronted with issues concerning national security and national defense since its early days. Our examination of the relevant precedent reveals that for over 60 years, in times of both war and peace, the Board has asserted jurisdiction over employers and employees that have been involved in national security and defense. We can find no case in which our protection of employees’ Section 7 rights had an adverse impact on national security or defense.

Further, after reviewing over 60 years of Board precedent, the majority rejected calls that the Board decline to assert jurisdiction in the interest of national security. The majority further found that “[a]bsent both a clear statement of Congressional intent and a clear statement from the TSA that would support our refusal to exercise jurisdiction, we will not create a non-statutory, policy-based exemption for private screeners,” who are otherwise entitled to the protections of the NLRB. The NLRB ruled that the annotation codified by Section 111(d) of ATSA “does not provide the Under Secretary the statutory authority to prohibit private screeners from being represented for the purposes of collective bargaining, even though those individuals carry out the same security screening function as Federally-employed screeners.”

In reaching its decision, the Board upheld a representation petition filed by the Security, Police, and Fire Professionals of America International (SPFPA) seeking to represent approximately 400 screeners and lead screeners at the Kansas City International Airport.

It is NTEU’s strong belief that Congress must give to TSOs the same rights private contract screeners enjoy--the right to organize and bargain collectively. And, the scope of bargaining and the bargaining process must allow meaningful negotiations over working conditions.

NTEU believes that in order for any human resources management system to be accepted by employees as fair and ultimately successful, it is essential that it incorporate a number of basic employee protections. That is why I am testifying today in strong support of efforts to provide basic civil service and collective bargaining rights to TSA employees in S. 4, the 9/11 Commission recommendation bill. When Congress created TSA, it allowed the agency to deny collective bargaining rights to the new federal workforce responsible for screening domestic airline passengers. Despite the fact that nearly all of the other bureaus that make up the DHS have collective bargaining rights, TSA denied those rights to airport screeners.

One of the first measures Congress enacted after the 9/11 attack on America was the Aviation and Transportation Security Act (ATSA) creating the Transportation and Security Administration (TSA) and federalizing the passenger and baggage screening of domestic and outbound international air travelers. Over 600 million people travel by air each year in the United States, and the screening of airline passengers and their carry-on and checked baggage is vital to securing our transportation security system.

ATSA, enacted in November 2001, removed screening responsibility from air carriers and the private sector contractors who conducted screening for them and placed this responsibility with TSA. As a result, TSA hired and deployed about 55,000 federal passenger and baggage Transportation Security Officers (TSO)—formerly known as screeners—to more than 400 airports nationwide based largely on the number of screeners the air carrier contractors had employed. Since August 2002, TSA has been prohibited by statute from exceeding 45,000 full-time equivalent positions available for screening.

Congress’ intention in federalizing the screening workforce was to replace a poorly trained, minimum-wage private contract screening workforce with professional, stable and highly trained security screening officers. Congress, however, included in ATSA, Section 111(d) that codified as a note to 49 U.S.C 44935, the following:

“Notwithstanding any other provision of the 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 function 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.”

This section permitted the establishment of a federal personnel management system that is unique to TSOs. The Federal Labor Relations Authority construed Section 111(d) as granting unfettered discretion to TSA to determine the terms and conditions of employment for federal screener personnel. Accordingly, a directive issued by then Under Secretary James Loy on January 8, 2003 barred screeners from engaging in collective bargaining.

The goal of providing screeners with adequate pay, benefits and training and thereby creating a professional and dedicated TSO workforce has been undermined by capricious and arbitrary management and the denial of the most basic workplace rights.

To date, TSA’s basic management programs have been massive failures. The training and certification program, performance appraisal system, and health and safety programs all lack accountability and therefore lack credibility with employees. This lack of oversight and accountability has resulted in one of the highest voluntary attrition rates in the entire federal government as well as the highest workplace injury rates.

For example, the TSA Performance Accountability and Standards System (PASS) remains one of the largest concerns for TSA employees. Let us consider the implementation of the Agency's pay for performance system at JFK International Airport in 2006 as an example. Under the PASS system, employees are rated at four (4) levels - Role Model, exceeds expectations, meets expectations or did not meet expectations. Employees could receive merit raises if they attained ratings at the two higher levels. Only 1% to 2% of all TSO’s at JFK received ratings at the highest level and only about 20% of the total number of JFK TSOs received any merit raise at all. In other words, 80% of the screener workforce at JFK received no merit raise in 2006.

Furthermore, allegations of favoritism and cronyism surround the system because there is no meaningful way for employees to challenge their ratings. They fear that if they speak up they will be fired -- and they have been. If they were to challenge their dismissal before the Agency's Disciplinary Board, they know they have a statistically insignificant chance of winning- perhaps one in twenty. The lack of Agency accountability in its personnel systems fosters a culture of employee fear that in turn leads to unreported management incompetence. This culture of fear threatens the security of our country.

Another example of the failed personnel systems at JFK is the training and certification system. The agency has implemented a system where employees are pulled from the line and tested on screening procedures. But, training and testing are not consistent and failing grades, which can lead to dismissal, are most often linked to instances of exercising caution and pulling bags management thought should have been passed through without further check. This policy may soon lead to the dismissal of many long term competent screeners. Yet employees lack a meaningful way to fix these systemic problems because management offers only limited retraining opportunities.

As noted in a recent GAO study, Aviation Security: TSA’s Staffing Allocation Model is Useful for Allocating Staff among Airports, but its Assumptions Should be Systematically Reassessed (GAO-07-299), reasons cited for attrition by the TSO workforce include “limited advancement opportunities, need for a higher paying job, work hours, difficulty of work and job dissatisfaction” (page 48.)

Widespread dissatisfaction with management and leadership creates a morale problem that affects the safety of this nation. I have told DHS leaders from the start that this department cannot succeed without listening to and respecting the voices of experienced, front-line employees. And the Office of Personnel Management (OPM) agrees.

According to the OPM, “an important principle behind maintaining a quality workforce is employee retention, and…TSA has acknowledged that high attrition rates drive up hiring and training costs. TSA officials stated that it costs about $10,000 to assess, hire, and train a TSO. Officials estimate that for every 2,500 TSOs that TSA retains, including part-time TSOs, TSA could save about $25 million.” (GAO-07-299, page 50)

NTEU believes that TSA’s continuing workforce problems stem directly from the decision to deny employee input through the collective bargaining process. TSA has been plagued by personnel problems never seen in any federal agency. Maintaining a stable, qualified, trained workforce was the primary goal of federalizing the transportation screener position. And years of massive turnover has wasted millions of taxpayer dollars in recruitment and training costs. NTEU believes that employee rights are the foundation for building a highly trained, committed, experienced career TSO workforce.

The Administration’s concerns that collective bargaining rights would limit management flexibility at TSA have been totally discredited by the record of the organized workforces at other DHS bureaus. Indeed, it is insulting to the hundreds of thousands of dedicated public safety officers with collective bargaining rights--from CBP Officers and Border Patrol Agents at DHS to local police and firefighters and your own Capitol Hill Police Force--to suggest that they would put their union rights before the national security interests of the country.

Collective bargaining rights have not hindered the federal government’s emergency response capability. Every union contract with federal government agencies recognizes management’s right to assign work and detail workers as necessary. In addition, management flexibility in times of crisis is set in statute. Title V, Section 7106(a)(D), states clearly that nothing “shall affect the authority of any management official of any agency to take whatever actions may be necessary to carry out the agency mission during emergencies.”

Rather than inhibit management, collective bargaining agreements set procedures for work assignments and duties that lead to stability in the workplace. Union rights result in trained, experienced, committed and efficient workers and that is what it takes to make this nation safe.

Federal workers represented by a union have no right to strike, and any statement to the contrary is patently false. The statute creating TSA, P.L. 107-71, in Section 111, includes specific language: (i) Limitation on Right to Strike.----an individual that screens passengers or property, or both, at an airport under this section may not participate in a strike, or assert the right to strike, against the person (including a governmental entity) employing such individual to perform such screening.

Title V also includes a specific prohibition on the right to strike for all federal employees in Section 7311 that states: “An individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he—(3) participates in a strike, or asserts the right to strike, against the Government of the United States…” And Section 7116(b)(7)(A) of Title V makes it an unfair labor practice for a federal union to call or participate in a strike.

Therefore, there is no reason that TSOs should not have the same collective bargaining rights as other DHS employees.

Like most other DHS employees, TSOs must have access to an adverse action and appeal process that treats employees fairly and ensures that their due process rights are protected. TSOs must be given reasonable notice and an opportunity to make a meaningful reply before disciplinary action is taken against them. TSOs must be able to appeal agency actions to an independent adjudicator whose decisions are subject to judicial review and agencies should bear the burden of proving just cause for actions taken against employees. In a workplace without these bedrock protections, employee morale will suffer, which in turn will adversely affect efficiency.

Basic fairness, including equity, security and stability of the TSA workforce compel Congress to provide collective bargaining rights for the only major workforce at DHS denied these rights. Ending years of TSA employee turnover and turmoil will result from this important correction by Congress.

NTEU strongly supports repeal of Section 111(d) of ATSA as approved by the House of Representatives in H.R. 1 and included in S. 4. Reversing this unequal treatment of TSOs will help restore morale and strengthen mission and personnel dedication at the Department of Homeland Security. NTEU wants for TSOs the same thing I believe Congress wants -- a workplace where employees can be successful and do quality work in an environment where they will be treated with dignity and respect and supported in achieving the agency’s critical mission.