Strengthening American Transportation Security Act of 2019

II 116TH CONGRESS 1ST SESSION S. 944 To enhance the security operations of the Transportation Security Administra- tion and the stability of the transportation security workforce by applying a unified personnel system under title 5, United States Code, to employ- ees of the Transportation Security Administration who are responsible for screening passengers and property, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 28, 2019 Mr. SCHATZ (for himself, Mr. BLUMENTHAL, Mr. BROWN, Mr. CARDIN, Mr. DURBIN, Mr. MARKEY, Mr. MENENDEZ, Mrs. MURRAY, Mr. PETERS, Ms. ROSEN, Ms. SMITH, Ms. STABENOW, Mr. VAN HOLLEN, and Ms. WAR- REN) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation A BILL To enhance the security operations of the Transportation Security Administration and the stability of the transpor- tation security workforce by applying a unified personnel system under title 5, United States Code, to employees of the Transportation Security Administration who are responsible for screening passengers and property, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 2 •S 944 IS SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 1 (a) SHORT TITLE.—This Act may be cited as the 2 ‘‘Strengthening American Transportation Security Act of 3 2019’’. 4 (b) TABLE OF CONTENTS.—The table of contents for 5 this Act is as follows: 6 Sec. 1. Short title; table of contents. Sec. 2. Findings; Sense of Congress. Sec. 3. Definitions. Sec. 4. Conversion of screening personnel. Sec. 5. Transition rules. Sec. 6. Representation of screening personnel. Sec. 7. No right to strike. Sec. 8. Rulemaking. Sec. 9. Delegations to Administrator. Sec. 10. Authorization of appropriations. SEC. 2. FINDINGS; SENSE OF CONGRESS. 7 (a) FINDINGS.—Congress finds the following: 8 (1) On September 11, 2001, 19 terrorists, who 9 underwent airport security screening prior to board- 10 ing domestic flights, were able to commandeer 4 air- 11 planes and use those airplanes to perpetrate the 12 most deadly terrorist attack ever to be executed on 13 United States soil. 14 (2) In the aftermath of those attacks, Congress 15 passed the Aviation and Transportation Security Act 16 (Public Law 107–71; 115 Stat. 597), which was 17 signed into law by President George W. Bush on 18 November 19, 2001— 19 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 3 •S 944 IS (A) to enhance the level of security screen- 1 ing throughout the Nation’s aviation system; 2 and 3 (B) to transfer responsibility for such 4 screening from the private sector to the newly 5 established Transportation Security Administra- 6 tion (in this section referred to as ‘‘TSA’’). 7 (3) By establishing TSA, Congress and the 8 American public recognized that the highest level of 9 screener performance was directly linked to employ- 10 ment and training standards, pay and benefits, and 11 the creation of an experienced, committed screening 12 workforce. 13 (4) Section 111(d) of the Aviation and Trans- 14 portation Security Act (49 U.S.C. 44935 note) au- 15 thorizes the Under Secretary of Transportation for 16 Security to ‘‘employ, appoint, discipline, terminate, 17 and fix the compensation, terms, and conditions of 18 employment of Federal service for such a number of 19 individuals as the Under Secretary determines to be 20 necessary to carry out the screening functions of the 21 Under Secretary under section 44901 of title 49, 22 United States Code’’. The functions of TSA were 23 transferred to the Department of Homeland Security 24 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 4 •S 944 IS under section 403 of the Homeland Security Act of 1 2002 (6 U.S.C. 203). 2 (5) TSA has interpreted the authorization de- 3 scribed in paragraph (4) as applying to all of the 4 transportation security officer workforce performing 5 screening functions, while all other TSA employees, 6 including managers, are subject to title 5, United 7 States Code, as incorporated in title 49 of such 8 Code. 9 (6) In November 2006, the International 10 Labour Organization ruled that the Bush Adminis- 11 tration violated international labor law when it pro- 12 hibited transportation security officers from engag- 13 ing in collective bargaining. 14 (7) After the Federal Labor Relations Board 15 approved a petition for the election of an exclusive 16 representative, on February 4, 2011, TSA Adminis- 17 trator John Pistole issued a binding determination 18 stating, ‘‘[I]t is critical that every TSA employee 19 feels that he or she has a voice and feels safe raising 20 issues and concerns of all kinds. This is important 21 not just for morale; engagement of every employee 22 is critically important for security.’’. 23 (8) That determination was superseded by sub- 24 sequent determinations issued in 2014 and 2016 25 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 5 •S 944 IS that continued to limit the scope of the bargaining 1 and review process. 2 (9) The 2011, 2014, and 2016 determinations 3 both cited TSA’s authority under section 111(d) of 4 the Aviation and Transportation Security Act (49 5 U.S.C. 44935 note) to create a personnel system 6 that denies the transportation security officer work- 7 force the rights under title 5, United States Code, 8 which are provided to most other Federal workers, 9 including— 10 (A) the right to appeal adverse personnel 11 decisions to the Merit Systems Protection 12 Board; 13 (B) fair pay under the General Schedule 14 pay system; 15 (C) fair performance appraisals under 16 chapter 73 of title 5, United States Code; and 17 (D) statutory protections against employ- 18 ment discrimination set forth in title 5, United 19 States Code. 20 (10) Every day, transportation security officers 21 put their safety on the line to protect the flying pub- 22 lic and on November 1, 2013, a transportation secu- 23 rity officer, Gerardo Hernandez, gave his life to pro- 24 tect the flying public when he was killed by a gun- 25 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 6 •S 944 IS man who attacked the Los Angeles International 1 Airport. 2 (11) Transportation security officers are vital 3 to aviation security and have kept the United States 4 aviation system secure, even during lapses in appro- 5 priations, when they were not paid. For 16 days in 6 2013, 3 days in 2018, and, most recently, 35 days 7 at the end of 2018 through early 2019, the TSA 8 workforce worked without pay alongside airplane 9 safety specialists, air traffic controllers, and other 10 Federal workers responsible for the aviation security 11 and safety framework that has protected United 12 States air travel since 2001. 13 (12) The adverse impact of 2 missed paychecks 14 during the shutdown that took place between De- 15 cember 22, 2018, and January 25, 2019, was felt 16 disproportionately by the transportation security of- 17 ficer workforce, with many officers receiving starting 18 annual salaries as low as $35,000. 19 (b) SENSE OF CONGRESS.—It is the sense of Con- 20 gress that— 21 (1) the personnel system utilized by the Trans- 22 portation Security Administration pursuant to sec- 23 tion 111(d) of the Aviation and Transportation Se- 24 curity Act (49 U.S.C. 44935 note) provides insuffi- 25 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 7 •S 944 IS cient workplace protections for the transportation 1 security officer workforce, who are the frontline per- 2 sonnel who secure the Nation’s aviation system; and 3 (2) such personnel should be entitled to the 4 protections under title 5, United States Code. 5 SEC. 3. DEFINITIONS. 6 In this Act: 7 (1) ADMINISTRATOR.—The term ‘‘Adminis- 8 trator’’ means the official within the Department of 9 Homeland Security who is responsible for overseeing 10 and implementing transportation security pursuant 11 to the Aviation and Transportation Security Act, 12 whether designated as the Assistant Secretary of 13 Homeland Security (Transportation Security Admin- 14 istration), the Administrator of the Transportation 15 Security Administration, the Under Secretary of 16 Transportation for Security, or otherwise. 17 (2) AGENCY.—The term ‘‘agency’’ means an 18 Executive agency, as defined by section 105 of title 19 5, United States Code. 20 (3) CONVERSION DATE.—The term ‘‘conversion 21 date’’ means the date as of which paragraphs (1) 22 through (3) of section 4(b) take effect. 23 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 8 •S 944 IS (4) COVERED EMPLOYEE.—The term ‘‘covered 1 employee’’ means an employee who holds a covered 2 position. 3 (5) COVERED POSITION.—The term ‘‘covered 4 position’’ means— 5 (A) a position within the Transportation 6 Security Administration; and 7 (B) any position within the Department of 8 Homeland Security, not described in subpara- 9 graph (A), the duties and responsibilities of 10 which involve providing transportation security 11 in furtherance of the purposes of the Aviation 12 and Transportation Security Act (Public Law 13 107–71; 115 Stat. 597), as determined by the 14 Secretary. 15 (6) EMPLOYEE.—The term ‘‘employee’’ has the 16 meaning given such term by section 2105 of title 5, 17 United States Code. 18 (7) SECRETARY.—The term ‘‘Secretary’’ means 19 the Secretary of Homeland Security. 20 (8) TSA PERSONNEL MANAGEMENT SYSTEM.— 21 The term ‘‘TSA personnel management system’’ 22 means any personnel management system estab- 23 lished or modified under— 24 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 9 •S 944 IS (A) section 111(d) of the Aviation and 1 Transportation Security Act (49 U.S.C. 44935 2 note); or 3 (B) section 114(n) of title 49, United 4 States Code. 5 SEC. 4. CONVERSION OF SCREENING PERSONNEL. 6 (a) TERMINATION OF CERTAIN PERSONNEL AU- 7 THORITIES.— 8 (1) TSA PERSONNEL MANAGEMENT SYSTEM.— 9 Section 114 of title 49, United States Code, is 10 amended by striking subsection (n). 11 (2) TERMINATION OF FLEXIBILITY IN EMPLOY- 12 MENT OF SCREENER PERSONNEL.—Section 111 of 13 the Aviation and Transportation Security Act (49 14 U.S.C. 44935 note) is amended by striking sub- 15 section (d). 16 (3) HUMAN RESOURCES MANAGEMENT SYS- 17 TEM.—Section 9701 of title 5, United States Code, 18 is amended— 19 (A) by redesignating subsection (h) as sub- 20 section (i); and 21 (B) by inserting after subsection (g) the 22 following: 23 ‘‘(h) LIMITATION.—The human resources manage- 24 ment system authorized under this section shall not apply 25 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 10 •S 944 IS to covered employees or covered positions (as such terms 1 are defined in section 3 of the Strengthening American 2 Transportation Security Act of 2019).’’. 3 (4) EFFECTIVE DATE.—The amendments made 4 by this subsection shall take effect on the conversion 5 date. 6 (b) COVERED EMPLOYEES AND POSITIONS MADE 7 SUBJECT TO SAME PERSONNEL MANAGEMENT SYSTEM 8 AS APPLIES TO CIVIL SERVICE EMPLOYEES GEN- 9 ERALLY.—On the earlier of a date determined by the Sec- 10 retary or 60 days after the date of the enactment of this 11 Act— 12 (1) all TSA personnel management system poli- 13 cies, directives, letters, and guidelines (including the 14 determinations of the Administrator described in 15 paragraphs (7), (8), and (9) of section 2(a)) shall 16 cease to be effective; 17 (2) any human resources management system 18 established or adjusted under section 9701 of title 5, 19 United States Code, shall cease to be effective with 20 respect to covered employees and covered positions; 21 and 22 (3) covered employees and covered positions 23 shall become subject to the applicable labor provi- 24 sions under title 49, United States Code. 25 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 11 •S 944 IS SEC. 5. TRANSITION RULES. 1 (a) NONREDUCTION IN RATE OF PAY.—Any conver- 2 sion of an employee from a TSA personnel management 3 system to the provisions of law referred to in section 4 4(b)(3) shall be effected, under pay conversion rules pre- 5 scribed by the Secretary, without any reduction in the rate 6 of pay payable to the employee. 7 (b) PRESERVATION OF OTHER RIGHTS.—The Sec- 8 retary shall take any necessary actions to ensure, for any 9 covered employee as of the conversion date, that— 10 (1) all service performed by the covered em- 11 ployee before the conversion date is credited in the 12 determination of the employee’s length of service for 13 purposes of applying the provisions of law governing 14 leave, pay, group life and health insurance, sever- 15 ance pay, tenure, and status, which are made appli- 16 cable to the employee under section 4(b)(3); 17 (2) all annual leave, sick leave, or other paid 18 leave accrued, accumulated, or otherwise available to 19 the covered employee immediately before the conver- 20 sion date remains available to the employee, until 21 used, while the employee remains continuously em- 22 ployed by the Department of Homeland Security; 23 and 24 (3) the Government share of any premiums or 25 other periodic charges under the provisions of law 26 VerDate Sep 11 2014 03:11 Apr 06, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S944.IS S944 kjohnson on DSK79L0C42 with BILLS 12 •S 944 IS governing group health insurance remains at the 1 level in effect immediately before the conversion date 2 while the employee remains continuously employed 3 by the Department of Homeland Security until the 4 end of the applicable contract year. 5 SEC. 6. REPRESENTATION OF SCREENING PERSONNEL. 6 (a) EXCLUSIVE REPRESENTATIVE.— 7 (1) IN GENERAL.—Effective on the date of the 8 enactment of this Act, the labor organization cer- 9 tified by the Federal Labor Relations Authority on 10 June 29, 201 [Text truncated for display. Full text available on Congress.gov.]