U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

33–877 PDF 2007

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

(

(II)

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

JOSEPH I. LIEBERMAN, Connecticut, Chairman 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

BARACK OBAMA, Illinois 

CLAIRE McCASKILL, Missouri 

JON TESTER, Montana 

SUSAN M. COLLINS, Maine 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

TOM COBURN, Oklahoma 

PETE V. DOMENICI, New Mexico 

JOHN WARNER, Virginia 

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 

THOMAS R. CARPER, Delaware 

MARK L. PRYOR, Arkansas 

MARY L. LANDRIEU, Louisiana 

GEORGE V. VOINOVICH, Ohio 

TED STEVENS, Alaska 

TOM COBURN, Oklahoma 

JOHN WARNER, Virginia

RICHARD J. KESSLER, Staff Director 

JENNIFER A. HEMINGWAY, Minority Staff Director 

EMILY MARTHALER, Chief Clerk 

(III)

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

(1)

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 imVerDate 0ct 09 2002 10:03 Aug 14, 2007 Jkt 033877 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\DOCS\33877.TXT SAFFAIRS PsN: PAT
2

1The 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. 

prove 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

Senator AKAKA. Sentor Voinovich. 

3

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. 

4

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. 

5

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 

6

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 

7

1The letter referred to appears in the Appendix on page 100. 

2The prepared statement of Mr. Hawley appears in the appendix on page 35. 

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

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. 

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 

8

1The chart referred to appears in the Appendix on page 96. 

1The chart referred to appears in the Appendix on page 99. 

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. 

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

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 pasVerDate 0ct 09 2002 10:03 Aug 14, 2007 Jkt 033877 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\DOCS\33877.TXT SAFFAIRS PsN: PAT
9

senger 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 

10

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 obserVerDate 0ct 09 2002 10:03 Aug 14, 2007 Jkt 033877 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\DOCS\33877.TXT SAFFAIRS PsN: PAT
11

vation, 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 

12

1The chart referred to appears in the Appendix on page 96. 

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. 

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? 

13

1The chart referred to appears in the Appendix on page 95. 

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-theboard 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 

14

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. 

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 

15

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 

16

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 

17

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. 

18

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. 

19

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 travVerDate 0ct 09 2002 10:03 Aug 14, 2007 Jkt 033877 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 C:\DOCS\33877.TXT SAFFAIRS PsN: PAT
20

eling 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 

21

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 nonvalue-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 

22

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 

23

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 

24

1The prepared statement of Mr. Gage appears in the appendix on page 83. 

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. 

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. 

25

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 critVerDate 0ct 09 2002 10:03 Aug 14, 2007 Jkt 033877 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 C:\DOCS\33877.TXT SAFFAIRS PsN: PAT
26

ical 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 commitVerDate 0ct 09 2002 10:03 Aug 14, 2007 Jkt 033877 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 C:\DOCS\33877.TXT SAFFAIRS PsN: PAT
27

ment 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 

28

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? 

29

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. 

30

1The chart referred to appears in the Appendix on page 98. 

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. 

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? 

31

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. 

32

1The chart referred to appears in the Appendix on page 97. 

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. 

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 

33

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——

34

1The article appears in the Appendix on page 111. 

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

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.] 

(35)

A P P E N D I X 


33877.001
36


33877.002
37


33877.003
38


33877.004
39


33877.005
40


33877.006
41


33877.007
42


33877.008
43


33877.009
44


33877.010
45


33877.011
46


33877.012
47


33877.013
48


33877.014
49


33877.015
50


33877.016
51


33877.017
52


33877.018
53


33877.019
54


33877.020
55


33877.021
56


33877.022
57


33877.023
58


33877.024
59


33877.025
60


33877.026
61


33877.027
62


33877.028
63


33877.029
64


33877.030
65


33877.031
66


33877.032
67


33877.033
68


33877.034
69


33877.035
70


33877.036
71


33877.037
72


33877.038
73


33877.039
74


33877.040
75


33877.041
76


33877.042
77


33877.043
78


33877.044
79


33877.045
80


33877.046
81


33877.047
82


33877.048
83


33877.049
84


33877.050
85


33877.051
86


33877.052
87


33877.053
88


33877.054
89


33877.055
90


33877.056
91


33877.057
92


33877.058
93


33877.059
94


33877.060
95


33877.061
96


33877.062
97


33877.063
98


33877.064
99


33877.065
100


33877.066
101


33877.067
102


33877.068
103


33877.069
104


33877.070
105


33877.071
106


33877.072
107


33877.073
108


33877.074
109


33877.075
110


33877.076
111

Æ


33877.077