[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
                 THE IMPACT OF BACKGROUND AND SECURITY
               CLEARANCES ON THE TRANSPORTATION WORKFORCE

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

                                HEARING

                               before the

                     SUBCOMMITTEE ON TRANSPORTATION
                      SECURITY AND INFRASTRUCTURE
                               PROTECTION

                                 of the

                     COMMITTEE ON HOMELAND SECURITY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 16, 2007

                               __________

                            Serial No. 110-9

                               __________

       Printed for the use of the Committee on Homeland Security
                                     
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13

                                     

  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html

                               __________



                   U.S. GOVERNMENT PRINTING OFFICE
35-268 PDF                  WASHINGTON : 2009
----------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½0900012009


                     COMMITTEE ON HOMELAND SECURITY

               BENNIE G. THOMPSON, Mississippi, Chairman

LORETTA SANCHEZ, California,         PETER T. KING, New York
EDWARD J. MARKEY, Massachusetts      LAMAR SMITH, Texas
NORMAN D. DICKS, Washington          CHRISTOPHER SHAYS, Connecticut
JANE HARMAN, California              MARK E. SOUDER, Indiana
PETER A. DeFAZIO, Oregon             TOM DAVIS, Virginia
NITA M. LOWEY, New York              DANIEL E. LUNGREN, California
ELEANOR HOLMES NORTON, District of   MIKE ROGERS, Alabama
Columbia                             BOBBY JINDAL, Louisiana
ZOE LOFGREN, California              DAVID G. REICHERT, Washington
SHEILA JACKSON LEE, Texas            MICHAEL T. McCAUL, Texas
DONNA M. CHRISTENSEN, U.S. Virgin    CHARLES W. DENT, Pennsylvania
Islands                              GINNY BROWN-WAITE, Florida
BOB ETHERIDGE, North Carolina        MARSHA BLACKBURN, Tennessee
JAMES R. LANGEVIN, Rhode Island      GUS M. BILIRAKIS, Florida
HENRY CUELLAR, Texas                 DAVID DAVIS, Tennessee
CHRISTOPHER P. CARNEY, Pennsylvania
YVETTE D. CLARKE, New York
AL GREEN, Texas
ED PERLMUTTER, Colorado
VACANCY

       Jessica Herrera-Flanigan, Staff Director & General Counsel

                        Todd Gee, Chief Counsel

                     Michael Twinchek, Chief Clerk

                Robert O'Connor, Minority Staff Director

                                 ______

 SUBCOMMITTEE ON TRANSPORTATION SECURITY AND INFRASTRUCTURE PROTECTION

                 SHEILA JACKSON LEE, Texas, Chairwoman

EDWARD J. MARKEY, Massachusetts      DANIEL E. LUNGREN, California
PETER A. DeFAZIO, Oregon             GINNY BROWN-WAITE, Florida
ELEANOR HOLMES NORTON, District of   MARSHA BLACKBURN, Tennessee
Columbia                             GUS M. BILIRAKIS, Florida
YVETTE D. CLARKE, New York           PETER T. KING, New York (Ex 
ED PERLMUTTER, Colorado              Officio)
BENNIE G. THOMPSON, Mississippi (Ex 
Officio)

                 D. Michael Stroud, Director & Counsel

                   Natalie Nixon, Deputy Chief Clerk

                 Coley O'Brien, Minority Senior Counsel

                                  (II)


                            C O N T E N T S

                              ----------                              
                                                                   Page

                               STATEMENTS

The Honorable Sheila Jackson Lee, a Representative in Congress 
  From the State of Texas, and Chairwoman, Subcommittee on 
  Transportation Security and Infrastructure Protection:
  Oral Statement.................................................     1
  Prepared Statement.............................................     2
The Honorable Daniel E. Lungren, a Representative in Congress 
  From the State of California, and Ranking Member, Subcommittee 
  on Transportation Security and Infrastructure Protection.......     2
The Honorable Bennie G. Thompson, a Representative in Congress 
  From the State of Mississippi, and Chairman, Committee on 
  Homeland Security..............................................     7
The Honorable Gus M. Bilirakis, a Representative in Congress From 
  the State of Florida...........................................    34
The Honorable Corrine Brown, a Representative in Congress From 
  the State of Florida...........................................    41
The Honorable Yvette D. Clarke, a Representative in Congress From 
  the State of New York..........................................    37
The Honorable John Conyers, Jr., a Representative in Congress 
  From the State of Michigan.....................................    39
The Honorable Eleanor Holmes Norton, a Delegate in Congress From 
  the District of Columbia.......................................    36
The Honorable Ed Perlmutter, a Representative in Congress From 
  the State of Colorado..........................................    39

                               Witnesses

Mr. Ed Hamberger, President and CEO, Association of American 
  Railroads:
  Oral Statement.................................................    10
  Prepared Statement.............................................    12
Mr. Robert D. Jamison, Deputy Administrator, Transportation 
  Security Administration:
  Oral Statement.................................................    27
  Prepared Statement.............................................    28
Mr. Santos M. Marinez, Trustee, Teamsters Local 705:
  Oral Statement.................................................    21
  Prepared Statement.............................................    24
Mr. Larry Willis, General Counsel, Transportation Trades 
  Department, AFL-CIO:
  Oral Statement.................................................    15
  Prepared Statement.............................................    17


                      THE IMPACT OF BACKGROUND AND
          SECURITY CLEARANCES ON THE TRANSPORTATION WORKFORCE

                              ----------                              Fr
iday, February 16, 2007




             U.S. House of Representatives,
                    Committee on Homeland Security,
                    Subcommittee on Transportation Security
                             and Infrastructure Protection,
                                                    Washington, DC.
    The subcommittee met, pursuant to call, at 10:53 a.m., in 
Room 311, Cannon House Office Building, Hon. Sheila Jackson Lee 
[chairman of the subcommittee] presiding.
    Present: Representatives Jackson Lee, DeFazio, Norton, 
Clarke, Perlmutter, Thompson, Conyers, Brown, Lungren, Brown-
Waite, and Bilirakis.
    Ms. Jackson Lee. [Presiding.] Good morning. The 
subcommittee will come to order.
    The subcommittee is meeting today to receive testimony on 
the impact of background checks and security clearances on the 
transportation workforce.
    We are very pleased with our witnesses this morning and our 
special guests.
    The chair also would like to acknowledge the presence of 
the gentleman from Michigan, Mr. Conyers, the chairman of the 
full Committee on the Judiciary, in today's proceedings, and 
Ms. Corrine Brown, the subcommittee chair of the Transportation 
and Infrastructure Committee.
    We welcome them. We understand the interests respectively 
of their respective committees, joined with the Committee on 
Homeland Security, on ensuring the importance, but also the 
consistency of the information of the impact of background and 
security clearances on transportation workers, and both 
approached the committee about participating here today.

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress From the State of Texas

    Before we begin this morning's hearing, I would like to recognize a 
few special guests that are with us today. I would like the following 
guests to stand and be acknowledged: Reverend Jesse Jackson and 
Attorney Tamara Holder.
    I want to first thank Reverend Jackson for his leadership on 
ameliorating the challenges faced by America's working class and these 
rail workers in particular. I also thank Attorney Tamara Holder for her 
dedication to the plight of these workers.
    I also want to recognize and thank two of the impacted workers for 
joining us today, Mr. Ron Uccardi and Mr. Arnold Shead (please stand).
    Mr. Uccardi worked with H&M International Transportation, Inc. for 
11 years. He worked as a spotter, groundman, and performed other 
functions. Mr. Uccardi is married with five children. Unfortunately, 
his wife was severely injured in a trucking accident and is unable to 
work because of her disability. With a son in college and now just one 
child in private school (the other child was pulled out because of the 
family's inability to afford the cost), Mr. Uccardi is in need of a 
fair appeals process and most importantly, he needs his job back. He is 
the sole breadwinner for his family.
    Mr. Shead worked with H&M for 7 years. He is the father of eight 
children and one of his daughter's is enrolled in Kennedy-King College 
in Chicago, Illinois. He indicated that he knew he had a great job, and 
he was consciously doing everything he could to be a good worker. Now, 
Mr. Shead is trying to raise eight children with one salary--his 
fiancee's. He too, needs an adequate redress process in place.
    Gentlemen, I want you to know that I am personally committed to 
rectifying the conditions that have led to your present status and your 
presence here today helps put a face with the issue.
    I want to note that today's hearing is focusing on background 
checks that employers conduct on transportation workers, usually as 
part of some voluntary program for which DHS and DOT have asked the 
employer to participate.
    However, this particular hearing is not about the Transportation 
Worker Identification Credential (or TWIC) program for maritime 
workers. I recognize that some of the protections in the TWIC program 
for maritime workers--like the right of an appeal to an Administrative 
Law Judge--may be a solution to some of the problems experienced by 
rail workers and others we are hearing from today.
    While there are many problems in the TWIC program that I intend for 
this committee to look into, we will focus on those issues at a later 
date.
    The Subcommittee's objectives in holding this exploratory hearing 
today are three-fold:
        (1) To ensure a process of redress for workers terminated under 
        the newly implemented background check process;
        (2) To assist the Department of Homeland Security in 
        determining the best methods for providing the railroad 
        companies with proper guidance; AND
        (2) To assist railroad companies in developing clear, 
        consistent standards for their background check procedures.
    While my colleagues and I appreciate the quick responses of both 
the Department and the industry in addressing this very critical 
issue--we are here today because there is work left to be done.
    I look forward to the witnesses' testimony and working with the 
Department, industry, and labor to learn more about this situation and 
others like it that negatively impact transportation workers.

    Ms. Lee. So I now ask for unanimous consent to allow Ms. 
Brown and Mr. Conyers to sit and question the witnesses at 
today's hearing.
    Mr. Lungren. Just reserving the right to object.
    Ms. Jackson Lee. Let me yield to the gentleman.
    Mr. Lungren. Madam Chair, we have worked in the spirit of 
cooperation on the full committee, as well as the subcommittee, 
both in the last Congress and this Congress and I hope that we 
will continue to do that.
    I would just ask if we could have the courtesy of being 
informed ahead of time if we are going to have additional 
members of Congress participate in our hearings, so that we can 
appropriately operate.
    And I thank you very much for informing me that we were 
going to have the presence of the chairman of the Judiciary 
Committee here with us and we had discussed that and that is 
obviously something that we would agree to.
    And the chairperson of the subcommittee dealing with rail 
is obviously an important person to be involved in these 
issues, but I wish we had been informed ahead of time so that 
we could do that, as we try to do.
    As we try to make an accommodation on both sides to have a 
fair hearing in which all sides are explicated, it makes it 
difficult when we add members on one side without prior 
knowledge to the other, such that, at the end of a hearing, you 
see that we have lopsided time and perhaps not a full rounded 
presentation.
    So with that, I would remove any objection, but I know that 
you and I will be working, as well as the full committee chair 
and the full committee ranking member, on making sure that we 
have a spirit of cooperation that continues to prevail in this 
committee and on this subcommittee.
    Ms. Jackson Lee. Reclaiming my time or at least the time I 
began this hearing.
    Let me thank the ranking member for both his inquiry and 
his removing of the objection.
    You are right, we noticed the full committee chair of the 
Judiciary Committee. Congresswoman Brown's schedule was just 
altered early this morning and there was an indication that she 
might be able to attend this hearing.
    In the collegiate spirit in which this Congress works, 
respecting members of different committees and, as well, 
respecting their interests and their particular jurisdiction, 
as you well know, we collaborate, on this particular committee, 
with a number of different committees.
    I am very appreciative that you have recognized Mr. Conyers 
and now appreciative, as well, that you recognize the 
untowardness, if you will, or the erraticness of member 
schedules and the request of Ms. Brown to participate and your 
acceptance of that, with the notation that we will continue to 
work in a manner where we are consulting, and we thank you so 
very much for yielding to that.
    Therefore, we will again acknowledge the presence and 
participation of both Representative Conyers and Representative 
Brown.
    Without objection, it is so ordered.
    Consistent with the rules and practices of the committee, 
we are pleased to honor the request of both Chairman Conyers 
and subcommittee Chairwoman Brown.
    Mr. Conyers and Ms. Brown will be recognized for 
questioning once all our members have been recognized, in 
accordance with the rules of the committee.
    Then I would like to ask unanimous consent to have the 
entire statement of Chairman John Conyers to be submitted into 
the record.
    Without objection, the statement is included.
    Ms. Jackson Lee. Let me also acknowledge, before I start, 
the participation of Mr. Thompson, the full committee chair; 
Ms. Eleanor Holmes Norton, a member of the committee; Mr. 
DeFazio was present; Ms. Clarke, a member of the committee; and 
Mr. Perlmutter, a member of the committee. We thank you. And 
Mr. Bilirakis's presence is noted, as well the ranking member, 
Mr. Lungren.
    One of the issues, as I begin my opening statement and 
welcoming the witnesses, that the Department of Homeland 
Security has had as its challenge is the acceptance of the 
responsibility of securing the homeland and protecting and 
recognizing the civil liberties and civil rights of the 
constituents which we protect.
    We hold that challenge very dear, enormously important for 
those who are being secured by this homeland to recognize that 
they are, in fact, participants both in terms of industry and, 
as well, in terms of those who work for the various sectors 
that this committee has the responsibility of securing.
    So I would like to have the opportunity to acknowledge 
those individuals who have a cause and who are representative 
of the many, many employees around the nation who, in some way, 
might have felt the hand of security in an unfair manner.
    I would like to recognize our special guests that are here 
with us today and I would like the following guests to stand 
and be acknowledged.
    In particular, first, Reverend Jesse Jackson, who has been 
a focal point of challenging the system to have the capability 
of securing the homeland, but addressing the civil liberties 
and civil rights of those they are securing.
    Reverend Jackson, would you stand to be acknowledged? Thank 
you for your presence here this morning.
    We are also pleased to have Attorney Tamara Holder, who has 
a long list of individuals who have been subjected to scrutiny 
in a manner that may not be consistent with responsibilities of 
the Department of Homeland Security, of which this fact-finding 
hearing will try to probe.
    Ms. Holder, would you stand and be acknowledged?
    I would like to thank Reverend Jackson again for his 
leadership on ameliorating the challenges faced by America's 
working class and rail workers, in particular.
    I also thank Attorney Tamara Holder for her dedication to 
the plight of these workers.
    I would like to recognize and thank two of the impacted 
workers for joining us today, Mr. Ron Yicardi and Mr. Arnold 
Shed. I believe they are at the table. Would they please stand?
    These gentlemen here are representing, if you will, some of 
the many, many stories that have come to our attention.
    Mr. Yicardi worked with H&M International Transportation 
for 11 years. He worked as a spotter, ground man, and performed 
other functions. Mr. Yicardi is married, with 5 children.
    Unfortunately, his wife was severely injured in a trucking 
accident and is unable to work because of her disability. With 
a son in college and now just one child in private school, the 
other child was pulled out because of the family's inability to 
afford the costs.
    Mr. Yicardi is in need of a fair appeals process and, most 
importantly, he needs his job back. He is the sole breadwinner 
of his family and he has been informed that because of 
particular elements of his background, that due to homeland 
security requirements, he has lost his job.
    Mr. Shed worked with H&M for 7 years. He is the father of 8 
children and one of his daughters is enrolled in Kennedy King 
College in Chicago, Illinois.
    He indicated that he knew he had a great job and he was 
consciously doing everything he could to be a good worker. Now, 
Mr. Shed is trying to raise 8 children with one salary, his 
fiance's.
    He, too, needs an adequate redress process in place and, 
also, his undoing was because of representations that DHS, 
Department of Homeland Security, was involved.
    Gentlemen, I want you to know that I am personally 
committed to rectifying the conditions, but I also believe that 
this committee is very interested in balancing the requirements 
of securing the homeland, as well as providing a fair and just 
system.
    We would like to understand this process and the witnesses 
that will be testifying today should give us the sense to 
understand and to have a better understanding and we would like 
to be able to address the question of your status and your 
presence here today helps to give us a faith to this very 
important issue.
    I want to note that today's hearing is focusing on 
background checks that employers conduct on transportation 
workers, usually as a part of some voluntary program for which 
Department of Homeland Security and DOT have asked the employer 
to participate.
    However, this particular hearing is not about the 
transportation worker identification credential, or TWIC, 
program for maritime workers. Those hearings are forthcoming in 
this committee and I know that we will look forward to a 
detailed set witnesses on that question.
    I recognize that some of the protections in the TWIC 
program for maritime workers, like the right of an appeal to an 
administrative law judge, may be a solution to some of the 
problems experienced by rail workers and others we are hearing 
from today.
    While there are many problems in the TWIC program that I 
intend for this committee to look into, we will focus on those 
issues at a later date.
    The subcommittee's objectives in holding this exploratory 
hearing today are threefold--to ensure a process of redress for 
workers terminated under the newly implemented background check 
process, to assist the Department of Homeland Security in 
determining the best methods for providing the railroad 
companies with proper guidance, and to assist railroad 
companies in developing clear and consistent standards for 
their background check procedures.
    While my colleagues and I appreciate the quick responses of 
both the department and the industry in addressing this very 
critical issue, we are here today because there is work left to 
be done and, frankly, I think it will be very important for 
some of the solutions that have been offered by the industry 
and some of the clarifications expressed by TSA, they need to 
be put on the record and the employees and subcontractors or 
contractors working with the industry and employees that are 
working with the industry need to have a clarification once and 
for all.
    I look forward to the witnesses' testimony and working with 
the department, industry and labor to learn more about this 
situation and others like it that negatively impact on 
transportation workers.
    This is a question that I believe is solvable. It is a 
question that we hope will make whole some of those whose 
stories we have heard, hardworking Americans who are simply 
trying to protect and support their families.
    They, too, can be part of the frontline defense of homeland 
security, as long as we do our business in the right way, 
provide clarification and detail and understanding. We can work 
together.
    With that, I will yield back my time.
    And I am pleased to yield to the ranking member of the 
subcommittee, Mr. Lungren, for 5 minutes.
    Mr. Lungren. Thank you very much, Madam Chairwoman.
    I think we are all concerned whenever we enact legislation 
in Congress as to how it impacts the general public or the 
various commercial interests involved and how it impacts 
individuals.
    However, the use of background checks and security 
clearances are important Department of Homeland Security tools 
to protect the public and our critical infrastructure.
    In testimony given to our Homeland Security Committee, the 
full committee, yesterday, Deputy Secretary Michael Jackson 
reiterated Secretary Chertoff's five core goals of the 
department.
    The first three are relevant to our hearing today: first, 
protect the nation from dangerous people; secondly, protect the 
nation from dangerous goods; and, third, protect our critical 
infrastructure.
    Individuals with malicious intent pose the greatest risk to 
the public, as well as our critical infrastructure.
    Without doing background checks, DHS is powerless to 
identify such individuals. Identity screening programs are 
currently being conducted by DHS at our borders, our airports 
and seaports, attempting to identify individuals with ill 
intent.
    This is part and parcel of our overall effort to try and 
thwart those who would attempt to commit acts of terrorism 
against our nation.
    If it were easy, we wouldn't have to worry about it. If the 
enemy weren't smart, we wouldn't have to do things which many 
of us find as inconveniences and even beyond that.
    The real problem is or the challenge is how do we protect 
ourselves without violating the rights of American citizen.
    If transportation workers who serve our ports and haul 
hazardous materials are subject to background screening, why 
shouldn't rail workers handling the same materials?
    As a matter of fact, we had a hearing recently where there 
was comment on both sides of the aisle of the lack of maturity 
of an overall program in the area of rail.
    Once identified, malicious individuals can be denied access 
to hazardous of security-sensitive materials and our critical 
infrastructure assets. While not without problems, identity 
screening programs which employ background and security checks 
provide a necessary layer for homeland security.
    However, it should be done fairly and expeditiously, with a 
right of appeal afforded the disqualified worker.
    I hope this hearing is not signaling that somehow there is 
a lack of support for background checks on transportation 
workers as a DHS tool for securing our homeland and I hope that 
today's hearing is broader than just looking at a single 
incident, which appears now to be in a mode of resolution by 
the railroads agreeing to provide a private right of appeal, 
private right of appeal, as I understand it, and hopefully we 
will be able to get into that.
    Background screening involves many important issues which 
impact individual workers and I think that in the last 
Congress, the now chairman of the full committee, Mr. Thompson, 
and I and our staffs worked very diligently to try and come up 
with legislation dealing with transportation workers.
    And one of the concerns we had at the time was have we a 
list of disqualifying crimes, which is too broad for the 
purpose, and does it make sense to have the list that we would 
want for people that would have access to security-sensitive 
materials be extended to those who are, for instance, HAZMAT 
drivers.
    And I think the gentleman from Mississippi and I agreed 
that that was too much of a reach and we were attempting to try 
and figure out what made the most sense, how do we do that, and 
we made progress in the last Congress, but we didn't complete 
that task and I hope that this subcommittee will work 
diligently on that.
    Background screening, as I say, involves many important 
issues which impact transportation workers, including the list, 
that is, what should be on the list of crimes which disqualify 
a candidate from service.
    There is also the question of duplicative requirements 
between the differing background checks. In addition, the cost 
of screening programs to the worker is a major concern that I 
hope we will address, particularly as these programs expand.
    I hope the subcommittee will have time to consider these 
additional issues which are critically important to developing 
an effective background screening process.
    There is no one in this Congress that wishes to disqualify 
people for insubstantial reasons and there is no one in this 
Congress who doesn't believe we ought to have rights so that if 
a mistake is made, a worker might appeal in an expeditious 
manner and have that resolved.
    But I hope that this hearing or other hearings do not in 
some way suggest that we do not need background checks nor that 
background checks are irrelevant or immaterial to the important 
issue of providing security to our vulnerable infrastructure.
    And so, Madam Chairwoman, I look forward to working with 
you on this and working with the full committee chair, as well.
    And I thank you for the time.
    Ms. Jackson Lee. I thank the ranking member.
    It is my pleasure now to be able to recognize the ranking 
member of the full committee for an opening statement for 5 
minutes.
    Chairman Thompson?
    Mr. Thompson. Thank you very much, Madam Chairman.
    Let me, from the outset, be very clear. Background checks 
are important, but objectivity, due process and all those 
things guaranteed every citizen of this country is absolutely 
fundamental.
    You can't dodge any problem by saying homeland security 
said it. We are here today because somehow objectivity did not 
take place and, hopefully, from this hearing and going forward, 
we can have background check, we can make sure that systems are 
correct.
    But in the process of doing it, we want to make sure that 
we are not disenfranchising workers who have been good workers, 
workers who have satisfied the duties and responsibilities on 
the job, become good providers for their families, and somehow 
because of quirks in the law, they lose their job.
    So, Madam Chairman, I want to thank you for calling the 
hearing.
    I want to thank our witnesses who are here today. I look 
forward to their testimony.
    Reverend Jackson, it is good see you again.
    Mr. Yicardi and Mr. Shed, I met you, I appreciate the 
opportunity to have met you. I wish it were under different 
circumstances, but we will move on and look at that issue.
    In addition, we are here today because the department 
issued unclear voluntary guidance to transporters of hazardous 
material. That guidance suggested that railroads should conduct 
background checks of all employees and remove those fail the 
checks, and this led us to several firings in the Chicago area.
    And when we learned of those firings, we sat down with 
Secretary Chertoff and Assistant Secretary Hawley to discuss 
these issues. Staff on the committee met. Congressman Conyers, 
Congresswoman Brown and others became intricately involved in 
many of those meetings.
    After the meeting with the secretary, he agreed that we 
would clear up the unclear guideline. The secretary gave me his 
word that he would do it.
    And, Madam Chairman, I would ask unanimous consent to enter 
into the record the new guideline issued by the secretary 
through TSA with respect to the hearings and due process for 
today.
    Ms. Jackson Lee. Without objection.
    Mr. Thompson. In this post-9/11 world, I recognize the 
paramount importance of protecting our nation's critical 
infrastructure, such as railroads and transportation avenues, 
but I know we must approach homeland security with common 
sense.
    As the chairman of this committee, I will not stand for 
compromising workers' rights just because it is convenient. We 
must strike a careful balance between protecting this great 
nation and protecting the civil rights of the citizens that 
make our nation great.
    Together, meaning the department, labor, industry and this 
committee, we must determine how to best strike this extremely 
important balance.
    First, we must ensure due process for all workers 
terminated because of the newly implemented background checks. 
We must work to extend this protection to all transportation 
industries, not just rail and maritime workers.
    Secondly, we must develop clear and consistent standards 
for those types of checks and the department must provide clear 
guidance for implementing background checks and security 
clearance standards, including protecting due process.
    So, Madam Chairman, I look forward to receiving the 
testimony of the people here today and hopefully hearings of 
this nature won't be needed after today.
    I yield back.
    Ms. Jackson Lee. Let me thank you very much, Chairman 
Thompson, and thank you very much for the submission of that 
clarification into the record.
    And one of the reasons that there is a representative from 
TSA is to ensure that that clarification is also enunciated or 
clarified through testimony here today.
    We want to acknowledge present at the hearing Congresswoman 
Ginny Grown-Waite of Florida and we thank her for her presence.
    Other members of the subcommittee are reminded that under 
the committee rules, opening statements may be submitted for 
the record.
    Let me again welcome our panel of witnesses and we will ask 
both Mr. Yicardi and Mr. Shed, if they would, there are two 
seats for you, if you would join the audience on the first row 
at this time, both Mr. Shed and Mr. Yicardi. Thank you. Don't 
go far away. Just stand by nearby. There should be two seats 
for you, should be, on the front row, two seats. Thank you very 
much.
    Let me welcome our panel of witnesses. Our first witness, 
Ed Hamberger, serves as president and CEO of the Association of 
American Railroads.
    Mr. Hamberger, welcome.
    Prior to joining the AAR in July 1998, he was a managing 
partner at the Washington, D.C. office of Baker, Donaldson, 
Bearman and Caldwell. He went to the firm in 1989, after having 
served as assistant secretary for governmental affairs at the 
Department of Transportation.
    Our second witness, Larry I. Willis, is the general counsel 
for transportation trade, AFL-CIO, a Washington, D.C.-based 
labor organization, representing several million workers in the 
private and public sectors of transportation, including mass 
transit and rail.
    Before joining TTD in 2003, Willis was the director of 
legislation and is an associate with the international law firm 
of Weil, Gotshal and Manges, LLP.
    Our third witness, Santos Marinez, is the trustee business 
agent for Local 705 of the Teamsters Union, representing over 
1,200 rail yard crane operators, drivers and inspectors in the 
Chicago area.
    Marinez was first elected to this position in December 2003 
and was reelected in December 2006. Prior to his elected 
service with the Teamsters, Marinez spent over 30 years of 
driving and operating rail yard cranes.
    And, Mr. Marinez, is that correct, you do not have a ``T?'' 
Is that correct? All right, thank you.
    Our final witness, Robert D. Jamison, is the deputy 
administrator of the Transportation Security Administration.
    Mr. Jamison, you have been before this committee before, 
been in this room, and we thank you.
    Mr. Jamison was appointed in October 2005. Mr. Jamison 
previously served as the deputy administrator of the FTA at the 
U.S. Department of Transportation.
    Without objection, the witnesses' full statements will be 
inserted into the record.
    I know ask each witness to summarize his statement for 5 
minutes, beginning with Mr. Hamberger.
    Mr. Hamberger, again, welcome.

   STATEMENT ED HAMBERGER, PRESIDENT AND CEO, ASSOCIATION OF 
                       AMERICAN RAILROADS

    Mr. Hamberger. Thank you, Madam Chairwoman, Congressman 
Lungren, Chairman Thompson, Chairman Conyers, and our 
industry's very own Chairwoman Corrine Brown.
    It is a pleasure to be here today on behalf of the members 
to get into the issue of criminal background checks for 
employees of rail contractors.
    Obviously, there has been some confusion around our 
program, which was implemented a little over a year ago, and I 
am pleased to have the opportunity to clarify on the record the 
origin of this program and to announce today the implementation 
of an improved appeals process.
    As you know, railroads have an obligation to their 
employees, their customers and the communities we serve to keep 
our operations and facilities as safe and secure as possible.
    One of the risk management tools railroads have used for 
over 10 years to achieve this goal is the criminal background 
check of prospective employees that the railroads do 
themselves.
    Railroad concerns go beyond terrorism, however, and I think 
it is important for this committee to understand that when we 
take a look at the background of a prospective employee, we do 
not just through the prism of terrorism, but also through the 
prism of workplace security, workplace safety and the 
protection of the goods and products entrusted to our care by 
our customers.
    In 2005, our security committee recognized that a gap in 
overall security plan was the lack of a background check for 
employees of contractors with access to critical rail assets.
    Consequently, at the end of 2005, several Class I railroads 
contracted with e-VERIFILE, a background investigation firm, to 
create an industry-wide security and safety initiative known as 
e-RAILSAFE to facilitate background checks on employees of 
railroad contractors. That was an initiative that the industry 
did on its own.
    In general, e-RAILSAFE flags for further review contractor 
employees who have had a felony conviction within the previous 
7 years or who have been released from jail for serving a 
felony conviction within the past 5 years.
    The police division of each railroad reviews the criminal 
record of those who are flagged and indicates which individuals 
will be awarded or denied access to railroad property.
    It is a contractor decision, contractor decision, not the 
railroad decision, whether or not the individual continues in 
the employ of the contractor.
    It has come to our attention through the good work of this 
committee that there has been a certain amount of confusion on 
the e-RAILSAFE program as to the resource available to 
contractor employees who are denied access pursuant to the 
background check.
    First, let me address the issue that some may have 
erroneously conveyed the impression that the e-RAIL's 
background program is required by the federal government. That 
is not the case. It is something that we took on our own 
initiative.
    I will point out that it is the case that it is a strongly 
recommended practice, and I believe Mr. Jamison will stand 
behind that recommendation in his testimony today.
    But I regret any miscommunication that may have occurred 
and if I or any of my staff miscommunicated on that, I 
apologize for that. It is not a requirement, but it is a 
strongly recommended practice and, again, I regret any 
confusion over that issue.
    Second, many contractor employees may not be aware that 
under the program, the employer, that is, the contractor with 
whom the railroad had a privity of contract, had the right to 
appeal the case back to the railroads.
    We have decided and are announcing today that we are going 
to adopt a new practice so that the employee himself or herself 
has the right to that appeal, that the employee is notified of 
that right to appeal, that the employee is given access to e-
VERIFILE, which would then pass the information back to the 
railroad.
    It will apply to individuals employed by railroad 
contractors who have been denied access to railroad property 
through the e-RAILSAFE program.
    Both the contractor and the contractor employee will have 
the right to appeal the initial denial of access through e-
RAILSAFE. The appeals process will be clearly described on the 
e-RAIL Website.
    I recognize that might not be enough. When there is a 
denial of access, a letter to the contractor and the employee 
clearly describing the appeals process will be sent.
    The process will provide the contractor and the employee 
the opportunity to supply information pertinent to the appeal 
in a timely fashion and any mitigating circumstances.
    Railroads are hopeful that these changes will alleviate the 
confusion regarding the e-RAILSAFE program and that the 
procedures to be followed in light of this new program will 
provide the proper balance that the chair was talking about in 
security, as well as right to an appeal and civil liberties.
    Let me just say that we are committed to continuing to work 
to have our workplace as safe and secure as possible.
    We appreciate the opportunity to be here and will look 
forward to working with this committee, Congresswoman Brown's 
committee, the Department of Homeland Security and our 
employees in continuing to provide that safe and secure 
workplace.
    Thank you.
    [The statement of Mr. Hamberger follows:]

               Prepared Statement of Edward R. Hamberger

Introduction
    On behalf of the members of the Association of American Railroads 
(AAR), thank you for the opportunity to discuss issues surrounding 
criminal background checks for those seeking access to railroad 
property, including contractors and employees of contractors. AAR 
members account for the vast majority of freight railroad mileage, 
employees, and traffic in Canada, Mexico, and the United States.
    Nothing is more important to railroads than the safety and security 
of their operations. It is an unfortunate reality of our times that the 
threat of terrorism has become a major concern. Each year, railroads 
are required by the federal government to carry potentially dangerous 
commodities--for example, 1.7 to 1.8 million carloads of various types 
of hazardous materials (including 100,000+ carloads of toxic inhalation 
hazards) and thousands of carloads of various military ordnance and 
explosives--that must be kept secure. Railroads, unlike their 
competitors in the trucking industry, cannot refuse to carry hazardous 
material. Railroads also carry vast quantities of high-value products 
that criminals covet. Bands of robbers riding up on horseback to steal 
valuables from passengers and the mail car have given way to 
sophisticated gangs with night vision goggles, high-tech radios, bolt 
cutters, and SUVs seeking cigarettes, electronics, designer clothes, 
and virtually anything else they can steal from containers and box cars 
in rail yards and on trains.

Overview of Criminal Background Checks
    Railroads have an obligation to their employees, their customers, 
the communities they serve, and their shareholders to keep their 
operations and facilities as safe and secure as possible. Railroads 
take this obligation, which has taken on a new dimension in the post-9/
11 world, very seriously. And like all other industries, railroads 
employ a variety of risk management tools to achieve this goal. One 
such tool is the use of criminal background checks of prospective 
employees and contractors seeking access to railroad property.
    For any firm, the basic purpose of a criminal background check is 
to reduce the likelihood that a prospective employee will engage in 
workplace crime. Even when a conviction is not directly related to the 
potential duties of a position (e.g., a conviction for embezzlement by 
an applicant for an auditing position), the conviction may be 
considered an indication that a necessary personal qualification 
(integrity, reliability, self control, etc.) is missing. Convictions of 
particular concern to railroads include crimes against persons, crimes 
involving weapons, crimes involving theft or fraud, and crimes 
involving drugs or alcohol.
    There are also important liability considerations behind criminal 
background investigations. These include protection against lawsuits 
for ``negligent hiring'' and ``negligent retention.'' Courts have ruled 
that employers can be held liable for the damaging actions of their 
employees, if, based on the employee's previous actions, he or she 
should have been disqualified for the position. Similar liability can 
arise from the actions of contractors and employees of contractors.
    The above points all hold true for railroads. In addition, as a 
consequence of the nature of their business, railroads face a growing 
body of legislative and regulatory requirements and recommended ``best 
practices'' related to homeland security that directly or indirectly 
call for criminal background checks for persons with access to railroad 
property. These requirements and recommended practices emanate from the 
Department of Homeland Security (DHS) or one of its agencies, such as 
the Transportation Security Administration (TSA), the Coast Guard, or 
the U.S. Customs and Border Protection (CBP); from the Department of 
Transportation (DOT) or one of its agencies, such as the Federal Motor 
Carrier
    Safety Administration or the Pipeline and Hazardous Materials 
Safety Administration; or from another government entity. For example:
         On June 23, 2006, DHS and DOT released their 
        Recommended Security Action Items for the Rail Transportation 
        of Toxic Inhalation Hazard Materials. ``Establishing procedures 
        for background checks and safety and security training for 
        contractor employees with unmonitored access to company-
        designated critical infrastructure'' was one of the recommended 
        voluntary best practices for the rail industry in this report. 
        On February 12, 2007, DHS and DOT released a supplement that 
        affirmed this guidance.
         DOT regulations (Title 49, Part 1572) require that 
        employees who perform locomotive servicing or track maintenance 
        and are required to operate motor vehicles that contain a 
        certain minimum amount of hazardous materials must have a 
        hazardous materials endorsement (HME) on their commercial 
        driver's license. To obtain an HME, a criminal background check 
        must be performed.
         Railroad employees who require access to port 
        facilities will soon be required to hold transportation worker 
        identification credentials (TWIC), a credentialing process 
        required by DHS. Eventually, DHS plans to require a TWIC card 
        for all transportation workers, including contractors, whose 
        job may require unescorted access to a secure area or 
        transportation industry. TWIC credentialing includes a criminal 
        background check.
         The Customs-Trade Partnership Against Terrorism (C-
        TPAT) program, a part of the SAFE Ports of 2006 Act that was 
        signed into law in October 2006, is a voluntary government-
        business initiative to strengthen and improve overall 
        international supply chain and U.S. border security. C-TPAT 
        gives strong emphasis to background checks for rail employees, 
        contractors, and others who have access to rail facilities.
                Under C-TPAT's minimum security criteria for railroads, 
                ``background checks and investigations shall be 
                conducted for current and prospective employees as 
                appropriate and as required by foreign, federal, state 
                and local regulations. . . . Once employed, periodic 
                checks and reinvestigations should be performed based 
                on cause and/or the sensitivity of the employee's 
                position.'' Rail carriers ``should strongly encourage 
                that contract service providers and shippers commit to 
                C-TPAT security recommendations,'' which state that 
                ``Temporary employees, vendors, and contractors. . .are 
                subject to the same background investigations required 
                of the Company's permanent employees.''
         Regulations governing the transport of hazardous 
        materials (49 CFR, Part 172.802) require carriers of certain 
        hazardous materials to develop and implement security plans. 
        These plans must address personnel security by implementing 
        measures to confirm information provided by job applicants for 
        positions that involve access to and handling of hazardous 
        materials covered by the security plan.
    Background checks involving railroads are also sometimes a shipper 
requirement. For example, the Responsible Care program is a major 
chemical industry initiative designed to, among other things, enhance 
security in chemical manufacture, transportation, and use. Criminal 
background checks are one of the tools the Responsible Care program 
uses. The program encourages chemical companies to extend their 
Responsible Care best practices to their business partners. Thus, the 
program encourages its member companies to require their vendors, 
contractors, and transportation providers to perform criminal 
background checks. Dow Chemical, for example, which is the largest U.S. 
chlorine producer, requires any transportation provider that moves its 
products to be Responsible Care members.

Railroad Contractors
    As discussed above, performing criminal background checks on 
railroad contractors and others who would have access to rail property 
is desirable and necessary for a number of reasons. To date, however, 
not all contractors working on railroad property have been conducting 
criminal background checks on their employees.
    To help close this gap, several Class I railroads recently teamed 
with eVerifile, a background investigation firm, to create an industry-
wide security and safety initiative known as e-RailSafe. The e-RailSafe 
program is designed to facilitate background screening and 
credentialing of Class I freight railroad contractors and contractors' 
employees.
    There is some limited variation from railroad to railroad, but in 
general e-RailSafe ``flags'' for further review contractor employees 
who have had a felony conviction within the previous seven years or who 
have been released from jail for serving a felony conviction within the 
last five years. The police division of each railroad reviews the 
criminal records of contractor employees who are flagged and then 
indicates to the contractor the names of individuals whose convictions 
are ``disqualifiers'' --i.e., individuals who are denied access to 
railroad property. It is a contractor decision, not a railroad 
decision, whether or not to continue to employ an individual who has 
been denied access to railroad property.
    The e-RailSafe program began in late 2005. To date, four of the 
seven Class I railroads are participating. Others have signed contracts 
with e-Verifile but have not yet initiated the program.
    Railroad police are examining the disqualifiers used by individual 
railroads under the e-RailSafe program. However, railroads believe that 
disqualifiers under the e-RailSafe program should not necessarily be 
the same as disqualifiers under government-sponsored programs or 
programs covering different firms or industries.
    For example, under TWIC, individuals are permanently disqualified 
if they have ever been convicted of a felony involving treason, 
espionage, sedition, a terrorism-related action, a crime involving a 
transportation security incident, improper transportation of a 
hazardous material, unlawful possession of explosives, murder, making 
threats about explosives, or racketeering.
    Interim disqualifying felonies preclude an individual from 
obtaining a TWIC card if the conviction occurred within the previous 
seven years or the individual was released from incarceration within 
the previous five years. Interim disqualifying felonies include a long 
list of offenses such as unlawful weapons charges, extortion, fraud, 
immigration violations, bribery, robbery, and others. Felony theft, 
however, is not a disqualifier under the TWIC program, but is--and 
should be--under e-RailSafe.
    It has come to our attention through the good work of this 
committee that there has been a certain amount of confusion among some 
railroads and contractors as to the rationale for the e-RailSafe 
program and as to the recourse available to contractor employees who 
are denied access privileges.
    First, some may have erroneously conveyed the impression that the 
e-RailSafe background check program is required by the federal 
government. That is not the case. The e-RailSafe website, where 
contractor employees are directed to submit their information, states 
that the program is designed to meet a variety of ``internal and 
regulatory requirements of the railroads.''
    Second, many contractor employees may not be aware that their 
employer has had the right to appeal their case back to the railroads.
    To help alleviate confusion, Class I railroads have agreed to adopt 
new practices, which we are pleased to present to you today. 
Henceforth, the following applies to individuals who are employed by 
railroad contractors or are applicants for employment by railroad 
contractors but have been denied access to railroad property through e-
RailSafe:
        1. Both the contractor and the contractor employee/applicant 
        will have the right to appeal the initial denial of access 
        through e-RailSafe. Previously, appeals were made by the 
        contractor on behalf of the employee.
        2. Directions on how to appeal the access decision will be 
        clearly described on the e-RailSafe web site.
        3. The e-RailSafe program will also send a letter to the 
        affected contractor and employee/applicant clearly describing 
        the appeals process.
        4. The appeals process will provide the contractor and the 
        contractor employee/applicant an opportunity to supply 
        information pertinent to the appeal in a timely fashion.
        A chart illustrating the e-RailSafe appeals process is attached 
        to the end of this testimony.
    Railroads are hopeful that these changes will alleviate confusion 
regarding the e-RailSafe program and the procedures to be followed in 
light of railroad decisions designed to create the safest and most 
secure work environment possible.

Conclusion
    Today, like most other industries, railroads perform criminal 
background checks of prospective employees and seek similar background 
checks of employees of other firms who will be accessing railroad 
property. These criminal background checks are a recommended practice 
by DHS and are likely to be made mandatory at some point in the future. 
The nature of railroading, as well as liability and other concerns, 
requires railroads to be especially vigilant regarding security issues.
    Railroads have been and continue to be in the forefront among all 
industries in adopting prudent measures to enhance safety and security. 
They are always willing to work constructively with members of this 
committee, other policymakers, communities, employees, and others to 
seeks effective ways to make this happen.

             Attachment: Chart--e-RailSafe Appeals Process




    Ms. Jackson Lee. Mr. Hamberger, thank you very much and 
thank you for your testimony and the spirit in which it has 
been offered.
    Mr. Willis?

  STATEMENT OF LARRY WILLIS, GENERAL COUNSEL, TRANSPORTATION 
                   TRADES DEPARTMENT, AFL-CIO

    Mr. Willis. Thank you, Madam Chair, Ranking Member Lungren, 
Chairman Thompson, members of the committee and other guests 
here today.
    Let me first begin and thank you for the opportunity to 
testify this morning on behalf of the AFL-CIO's transportation 
trades department and our 32 member transportation unions.
    In particular, I want to point out there has been a lot of 
discussion about what occurred in Chicago, but TTD also 
represents two unions that are covered by D.C. RAILSAFE checks, 
the Transportation Communications Union and the Brotherhood of 
Railroad Signalmen.
    TCU represents workers in intermodal facilities on the west 
coast. BRS represents workers represented with contractors of 
signal systems. And, again, they are also covered by the checks 
that we are talking about here today.
    Let me state, at the outset, an echoed sentiment that has 
been expressed in this committee. We understand that the world 
has changed significantly since 9/11 and we understand that 
controlling access to transportation facilities and assets is 
an important and inherent part of securing those assets.
    We also understand that background checks to root out 
those, as Mr. Lungren said, that have malicious intent or that 
represent a security risk are legitimate goals and ones that we 
fully support.
    But there is a right way to go about that and there is a 
wrong way to go about doing that. And we would submit that the 
e-RAILSAFE program, as originally rolled out and 
notwithstanding the modifications that have been announced here 
today, as still exists, is too far in the direction of the 
wrong way.
    This committee and members of Congress and TSA have worked 
very hard to get these background checks in the HAZMAT area and 
the TWIC area for maritime and longshore. While by no means 
perfect, at least both of those programs, again, as Mr. Lungren 
said, give you a list of disqualifying offenses, so that 
workers can fully understand what crimes will cause them 
problems.
    There is nothing that I have seen and there is no clarity 
in Mr. Hamberger's statement about what those felony offenses 
will be that are thus flagged and thus are, quote-unquote, 
disqualifying offenses.
    Furthermore, on the e-RAILSAFE Website and in some of the 
material that we have seen, it also says that, quote-unquote, 
misdemeanors of concern could also disqualify a worker.
    We still don't know exactly what that is. So I think a 
major component of fairness and due process here is to fully 
articulate, again, what are the offenses and how far back--
again, it has been said 7 and 5 years.
    We have heard reports that some contractors go back 
farther. There has been some major confusion. That needs to be 
clearly stated about what those offenses are, how far back 
folks are looking, and to make sure that there is a nexus 
between those disqualifying offenses and the security threat 
that you are trying to stop.
    I understand that you may not just be targeted on 
terrorism, but the security rationale for this program has been 
used as a reason for instituting it and we should understand 
what are we trying to protect and then make sure those 
disqualifying offenses hook up directly.
    The appeals and waiver process was a critical component of 
the maritime TWIC program or the HAZMAT program. In fact, one 
of the things that this committee insisted on as we did the 
Coast
Guard reauthorization bill last year was to put an 
administrative law judge, so that there would be an independent 
person, separate from TSA, deciding whether or not an 
individual was going to get an appeal.
    Again, we appreciate the changes that have been made, that 
have been announced this morning, and I think there are some 
good parts of that, but if you don't have an independent person 
making those types of decisions, you are appealing back to 
essentially the employer here.
    That opens you up to just inherent subjective decisions and 
claims of bias and favoritism, et cetera, and are going to 
create further issues here.
    We need to identify some independent redress mechanisms 
that workers can seek.
    Again, a lot has been said about the TWIC program and about 
how this is coming into other modes of transportation. We see 
that, as well.
    I would note that the program done by e-RAILSAFE and TWIC 
in maritime and HAZMAT is not this program. The TWIC program 
and the HAZMAT program are much more favorable to workers as 
far as assuring due process.
    So if we want to have one universal program and we want to 
have not duplicative checks and what have you and one standard, 
then, again, I think the railroads need to look at the good 
work that this committee and TSA have done with those other 
background check programs that, while no means perfect, at 
least create some parameters and limitations that I think are 
helpful and important.
    My time is up, so let me stop and I would be happy to 
answer any questions.
    [The statement of Mr. Willis follows:]

                 Prepared Statement of Larry I. Willis

    On behalf of the Transportation Trades Department, AFLCIO (TTD), I 
want to thank the Committee for the opportunity to testify this morning 
on the imposition of criminal background checks by rail industry 
contractors through the e-RAILSAFE Program. I also want to thank you 
Madam Chair, not only for calling this hearing, but for your work in 
investigating and evaluating exactly what is being done by the 
railroads and your commitment to hold these companies accountable.
    TTD represents 32 member unions in all modes of transportation and 
our 10 rail affiliates make-up our Rail Labor Division.\1\ I want to 
specifically note that two of our affiliates, the Transportation 
Communications International Union (TCU) and the Brotherhood of 
Railroad Signalmen (BRS), represent workers that are subject to the 
checks performed by e-RAILSAFE and that are the focus of today's 
hearing.
---------------------------------------------------------------------------
    \1\ A complete list of TTD's member unions is attached.
---------------------------------------------------------------------------
    The e-RAILSAFE program, designed and imposed by our nation's Class 
I railroads, was implemented without any consultation with labor and 
ignores the standards and procedures that have been developed by 
Congress and the Administration for security threat assessments. Given 
this fact, it is not surprising that the program has generated so much 
confusion and controversy. It is indeed unfortunate
that we find ourselves having to address these issues today at a 
Congressional hearing when many of these problems could have been 
avoided by the rail industry with smarter planning, collaboration with 
our member unions, and a better understanding of the work that has been 
done in this area since the September 11, 2001 terrorist attacks.
    Indeed, since 9/11, Congress and the Administration, particularly 
the Transportation Security Administration (TSA), have focused 
considerable attention on imposing various forms of background checks 
on transportation workers and on planning for a universal 
Transportation Worker Identification Credential (TWIC). TTD has been at 
the forefront of this debate.
    We have participated vigorously throughout the legislative and 
regulatory process to ensure these initiatives are reasonable and 
strike the proper and necessary balance between worker rights and due 
process, and legitimate security concerns. Indeed, it must be clear 
that no one wants to secure our nation's transportation system, 
including freight and passenger rail facilities, more than 
transportation workers. Our members are on the front lines and they 
will be the ones first affected in the event that a terrorist attack is 
carried out using or targeting our nation's transportation system and 
infrastructure.
    With this in mind, we have been forceful advocates before Congress 
and the federal government for more federal support for rail 
transportation security improvements, mandatory employee training and 
strong whistleblower protections. It is indeed disturbing that we 
continue to face stiff opposition from the industry's lobby to our 
common sense security agenda; and this is the same industry that claims 
the safety and security of the rail network is its number one priority.
    We do understand and appreciate that the world has changed since 9/
11. Controlling who enters our transportation system and its facilities 
and ensuring that those who work there do not pose a terrorism security 
risk are legitimate goals and ones that we fully support. But any 
background check program must strike the right balance: disqualifying 
offenses must be clearly articulated and limited to those that cause 
someone to be a true security risk; a robust and independent appeals 
and waiver process must be available; worker privacy must be protected; 
and overall the process must be fair, consistent and transparent so 
workers can navigate the program in an efficient manner.
    Based on these and other objectives, we worked directly with 
Members of Congress on both sides of the aisle in developing certain 
parameters for the maritime TWIC program embodied in the Maritime 
Transportation Security Act. We were pleased that this bipartisan model 
was largely adopted when TSA implemented the Hazmat security threat 
assessments required by Congress in the USA Patriot Act. While by no 
means perfect, these two TSA run programs at least provide workers with 
a list of disqualifying offenses, an appeals and waiver process, which 
includes, at the direction of Congress, an Administrative Law Judge 
(ALJ), and privacy protections limiting the use and distribution of 
information generated by these checks.
    Let me be clear--the rail industry followed none of these 
principles in implementing its e-RAILSAFE program. And it must be noted 
that these checks apply to current workers, many of which have had 
long, productive tenures with their employers and are dependant on 
these jobs to support themselves and their families.
    One of the main problems with the e-RAILSAFE program is that the 
scope of these checks and the process that workers must follow remain 
vague and unclear. Even in discussions convened by your staff Madam 
Chair, railroad representatives expressed uncertainty on exactly what 
would constitute rejection by e-RAILSAFE. If the railroads themselves 
cannot tell us how and why someone will fail a background check, how 
are rank and file workers expected to figure out their rights and how 
to preserve their jobs?
    According to one written description of the program (see attachment 
2), ``an employee will be denied an identification badge if the 
background screening process reveals a felony conviction in the past 7 
years, or the employee was released from incarceration for a felony 
offense within the last 5 years.'' But we have also been told by at 
least one railroad security official that multiple misdemeanors might 
also be considered and the e-RAILSAFE web site clearly states that 
employees can be ``denied if they have misdemeanor crimes of concern.'' 
\2\ Again, railroad representatives offer different interpretations of 
what this means and no one has been able to tell us what constitutes 
misdemeanor ``crimes of concern.'' I guess it's whatever some official 
decides on any given day.
---------------------------------------------------------------------------
    \2\ See e-RAILSAFE web site at http://www.e-railsafe.com/help/
rsFAQ.htnl.
---------------------------------------------------------------------------
    It should also be noted that rail workers are required by the e-
RAILSAFE program to sign a broad consent form that, among other things, 
allows for a review of the employee's ``character and general 
reputation.'' This may be boilerplate legal language, but with no 
further explanation from the company, front-line workers are not sure 
what type of checks they are agreeing to. Furthermore, e-RAILSAFE 
literature warns that these checks are somehow required by the 
Department of Homeland Security and subject to audit by government 
officials. A false claim offered only to lend credibility to this 
program and to coerce employees who would otherwise have legitimate 
questions about the extent of these background checks. And failure by 
the employee to sign the consent form will result in the worker being 
denied access to the rail facility.
    The railroads' claims that workers are offered an ``appeals'' 
process are false as well. The fact is that the appeals process is a 
protection in name only. As far as we can tell, the decision to 
``appeal'' is left up to the contractor and the ultimate decision maker 
is the Class I railroad itself. This circular and insular process does 
not represent a fair process and it subjects workers to favoritism, 
potential bias and inconsistent standards.
    A worker must have the ability to offer any corrections to criminal 
records and further demonstrate that despite a bad decision made 
several years ago, they do not constitute a security risk. Both of 
these rights are afforded to workers in the TWIC and Hazmat program. In 
fact, for the TWIC program Members of this Committee worked with 
transportation labor to require the availability of independent ALJs to 
hear worker appeals. This added protection was deemed necessary because 
the waiver process, as originally proposed, would have required workers 
to apply back to the very same agency that determined the individual 
was a security risk in the first place.
    I understand that based on the public criticisms of e-RAILSAFE, the 
AAR has already spoken to Members of this Committee and others in 
Congress about reforming this program. We applaud this decision. I 
would note, however, that on a number of occasions we have asked the 
industry to sit down with us in an attempt to reconcile some of the 
issues being considered today. Our offers of assistance were rejected 
and we could only meet with the rail industry on this topic when staff 
for the Committee convened a meeting late last year. It is my sincere 
hope that the industry will not employ this approach in the future if 
it is serious about reforming this program.
    As I said at the outset, we are in strong support of efforts that 
will prevent those that pose a security risk from working in sensitive 
transportation positions. But there is a right way to go about this and 
a wrong way. Clearly the approach by e-RAILSAFE is wrongheaded and must 
be changed.
    I hope this time, with our participation and the oversight of this 
Committee, the industry can get it right. At the end of day, a balanced 
and fair process of screening workers is not inconsistent with the 
goals of these checks and will only enhance transportation security.
    Thank you for the opportunity to share our views today and I would 
be happy to answer any questions the Committee may have.

                    Attachment 1: TTD MEMBER UNIONS



 Attachment 2: TTX Company Field Maintenance Operations Newsletter, In 
  the Field Class I Railroads Increase Security Measures, Winter 2007.




    Ms. Jackson Lee. Thank you, Mr. Willis. Thank you so very 
much for your instructive testimony.
    And I now recognize Mr. Marinez for him to be able to 
summarize his statement for 5 minutes.
    Mr. Marinez? Thank you.

   STATEMENT OF SANTOS MARINEZ, TRUSTEE, TEAMSTERS LOCAL 705

    Mr. Marinez. Madam Chairwoman, Ranking Member Lungren, Mr. 
Thompson, members of the subcommittee, my name is Santos 
Marinez and I am an elected trustee of Teamsters Local 705.
    Thank you for the opportunity to testify today on the 
impact of background checks on workers in the transportation 
industry.
    Today I will address the issue of security clearances in 
the rail terminal industry.
    Local 705 is one of the largest Teamster locals in the 
nation, representing over 20,000 members, mostly in the 
transportation industry in the Chicago area. We represent over 
1,200 members in the rail cargo industry, where I started 30 
years ago.
    The system used in rail yards today to screen employees in 
an effective means to prevent terrorism is opaque, unjust and 
ineffective. The vast majority of the functions in rail yards 
are outsourced to outside vendors by the railroads.
    Thousands of these companies across the nation compete 
fiercely for the work. A badge to enter the rail yard is an 
absolute necessity for our members. Unfortunately, we cannot 
negotiate the terms of issuing these badges. They are issued by 
the railroads, not the employers themselves.
    In fact, the employers are as much at the mercy of whatever 
system the railroad implements for security needs as our 
members. Because the denial of a badge is effectively the 
denial of one's livelihood, it is critical that the process be 
transparent and as fair as possible.
    The system of credentialing individuals working at rail 
yard terminals is confusing. The railroads have required their 
rail terminal contractors to screen their employees, but there 
is no government mandate for this.
    These background checks at applied inconsistently. Each 
railroad treats its contract employees differently. Different 
lists of crimes are used to disqualify an individual, including 
misdemeanor crimes.
    There is no transparency. The railroads don't tell the 
contractor or the employee what crimes are disqualifying and 
how far back they are looking.
    If background checks are to be required of rail terminal 
employees, then standards should be the same as those that have 
been implemented in other sectors, such as airline, trucking 
and maritime.
    The system that the railroads use, called e-RAILSAFE, is 
being implemented throughout the national railroad system.
    This presents the first issue of fairness. I know of 
employees who have been denied badges in one yard who have gone 
on to work in other yards. If the badges were properly denied, 
obviously, this creates a greater security risk, not a lesser 
one.
    If one assumes that they were improperly denied, the system 
has lost credibility and effectiveness.
    With e-RAILSAFE, the employee of a rail vendor is given a 
very wide ranging release document and ordered to sign it. His 
or her union is helpless to assist because the property owner, 
not the employer, is making the demand and the employees have 
no collective bargaining rights against the railroad.
    The release demands access to criminal background 
information, of course, but also credit checks, among other 
items.
    Why is a credit report required to do a criminal background 
check?
    Employees who protest are advised to sign the document or 
be discharged. This sharing of personal information with 
employers and the railroads is inappropriate.
    The notification process should be limited to the 
applicant's background check only.
    The list of disqualifying offenses is unclear. Drug 
offenses are the most common problem and while Local 705 does 
not condone unlawful drug use, these people do not constitute 
an extraordinary threat to the nation's rail system.
    Here is a real life example of the bureaucratic mess that 
the system allows. One of our members was convicted of auto 
theft when he was a young man. After he served his sentence, he 
applied to work at one of the rail yards for a vendor whose 
workers were represented by Local 705.
    He informed the employer on his application of his criminal 
record. He had a spotless work record for 5 years and no 
further criminal history after his conviction.
    In August 2004, after a background check, he was summarily 
terminated because he lost his badge due to his criminal 
record. Local 705 was powerless to support him, as we had no 
recourse against the railroad.
    We assisted in getting him another job at another local 
rail yard doing the exact same work. He worked there until 7 
years had passed from the time of his conviction.
    He was then rehired by his original employer and was 
granted a badge for the very same rail yard from which he had 
been expelled 2 years previously.
    National security was not served this episode. Rather, it 
seems arbitrary, unfair and pointless. And there are so many 
other similar stories.
    Denying a badge to individuals who have a felony conviction 
within the last 7 years, who have been released from serving a 
felony sentence in the last 5 years must be reconsidered.
    This is causing the dismissal of good, hardworking 
Americans who have had solid work records and is casting them 
as threats to our national security.
    Once an employee fails a background check, he can either 
disappear, presumably into the welfare or the criminal justice 
system, or he can try and appeal, but the system seems 
arbitrary and unfair.
    Moreover, the employee who has returned to work is not 
compensated for his lost time or wages during his time off 
work.
    Broader offenses are an especially difficult problem. If 
there is concern about crimes such as foreign identity 
documents, they should be spelled out. However, disqualifying 
an individual for a felony involved fraud and dishonesty could 
include passing bad checks.
    Many hardworking Americans could be considered a security 
risk because of that offense.
    Criminal codes can vary greatly from state to state and 
employees should have the ability to challenge the 
characterization of a particular offense in the appeal process.
    Appeal decisions should be made by an administrative law 
judge or a third party not linked to the railroads.
    I believe that we must have a safe rail system. After all, 
our members are on the front line of a potential attack. 
However, a vigorous effort must be made to balance the interest 
of increased security with the protection of employee rights.
    It is my hope that the recommendation I have discussed 
today will be considered to further improve this balance.
    With that, I thank you for the opportunity to testify 
today. I would be happy to answer any questions from the 
committee.
    Thank you.
    [The statement of Mr. Marinez follows:]

                  Prepared Statement of Santos Marinez

    My name is Santos Marinez, and I am an elected Trustee of Local 705 
of the International Brotherhood of Teamsters. Thank you for the 
opportunity to testify today on behalf of our members on the issues of 
background checks and security clearances on workers in the 
transportation industry. The International has been very active in the 
Congress since 9/11 and the advent of additional background checks in 
the transportation industry, in trying to protect our member's privacy, 
assuring a fair and just process for evaluating workers as potential 
terrorist threats, providing a means by which our members can correct 
erroneous information, appeal a decision that might deny them a 
security clearance or credential and hence their livelihood, and allow 
for the consideration of mitigating circumstances--giving someone who 
has made a mistake and paid for it--a second chance. From background 
checks implemented on airline employees, hazmat hauling truckers, 
maritime industry employees, and the implementation of the 
Transportation Worker Identification Credential (TWIC), we have sought 
to ensure that our members are protected through any credentialing 
process that would unjustifiably deny them their ability to earn a 
living.
    I am here today to specifically address the issue of background and 
security clearances in the rail terminal industry. Local 705 is one of 
the largest Teamster locals in the nation, representing over 20,000 
members, mostly in the transportation industry in the Chicago Area. 
Local 705 represents drivers, warehouse workers, UPS and DHL delivery 
persons and hundreds of other job classifications. We represent around 
1,200 members in the industry from which I come, the rail cargo 
handling business. Working in the rail yards has come a long way since 
I started thirty-five years ago. Most notably, the use of containers 
has become almost universal. The days of the boxcar as the dominant 
railcar are long over. Rail yards are also different. Yards used to be 
located in the city, near the center and were generally relatively 
small and scattered through the area, especially in my area, the rail 
capital of the nation. However, with the advent of so-called 
``intermodal'' rail traffic, built around a container box that is 
loaded at the shipper's site, carried by truck to a rail yard or port, 
loaded on a train or ship and then placed onto another truck to be 
delivered to the receiver's location, the look and operation of today's 
rail yards has changed dramatically. New rail yards are enormous, 
covering hundreds of acres and are located many, if not hundreds of 
miles from the cities they service. Trains have grown longer and the 
demands on the personnel loading and unloading them have become 
greater.
    Security concerns have also grown in the intermodal age. Containers 
are very rarely opened or inspected during transit and, thus, are 
potential entry points for all manner of threats. In the post 9/11 
world, there is clearly a need to strengthen security in the United 
States and in particular in the nation's transportation system. 
However, the system used in the rail yards to screen employees is not 
an effective means to prevent terrorism. While some form of increased 
security measures may need to be implemented, including an employee 
background check, the current system is opaque, unjust and ineffective.
    A word of explanation is in order: the railroads for the most part 
do not do their own cargo handling in their rail yards. The vast 
majority of functions at a rail yard: from check-in and check-out, to 
crane operations, and to moving the containers around the yard be 
outsourced to outside vendors. There are thousands of these companies 
around the nation and they compete fiercely for the work. Local 705 
represents approximately 1,200 employees of these vendors.
    I must point out that a badge to enter the rail yards is an 
absolute necessity for our members. Unfortunately, we cannot negotiate 
the terms of issuance of these badges, as they are issued by the 
railroads, not the employers themselves. In fact, the employers are as 
much at the mercy of whatever system the railroad implements for 
security needs as our members. Because the denial of a badge is 
effectively the denial of livelihood, it is critical that the process 
be transparent and as fair as possible.
    There seems to be a lot of confusion and misunderstanding of what 
credentialing and background check protocol is required of individuals 
working at rail terminals. It appears that the railroads have required 
their rail terminal contractors to screen their employees by utilizing 
a criminal history record check. But there appears to be no government 
mandate for this. What even makes this worse is the haphazard and 
inconsistent way in which these background checks have been applied. 
Depending on which railroad the contract employee works for, he may be 
treated in a variety of ways. Different lists of crimes can be used to 
disqualify an individual, including the use of misdemeanor crimes. 
There is no transparency--the railroads don't tell the contractor or 
the employee what crimes are disqualifying or how far back they are 
looking. There are no established procedures to correct records that 
may be in error; there appears to be no process for appeal of a 
disqualification; and there is no consideration of mitigating 
circumstances. The fact that the individual may have done his time, 
paid his debt to society and has righted his life receives little or no 
consideration. These are all elements of background checks that have 
been initiated in the airline, trucking and maritime industry. And if 
background checks are to be required of rail terminal employees then 
standards should be the same as those that have been implemented in 
other sectors.
    One of the first questions that should be asked is ``who should be 
covered?'' Are there secure or restricted areas that exist within the 
boundaries of the rail yard, where a potential terrorist act could 
cause an explosion or release of toxic chemicals? If so, then perhaps 
only those workers with access to those secure or restricted areas 
should be made to undergo a criminal background check. That's what's 
done at airports and maritime facilities.
    The system that the railroads have come up with is called ``e-
railsafe'' and is being rolled out on a yard-by-yard basis throughout 
the national rail system. This rollout presents the first issue of 
fairness. I am personally aware of employees who have been denied 
badges in one yard, who have gone on to work in other yards. Assuming 
the badges were properly denied, obviously, this creates a greater 
security risk, not a lesser one. And if one were to assume that they 
were improperly denied, the system has lost credibility and 
effectiveness.
    Once e-railsafe is implemented in an individual yard, the employee 
of a rail vendor is presented with a very wide-ranging release document 
and ordered to sign it. His or her union is helpless to assist, as the 
property owner, not the employer, is making the demand and the 
employees have no collective bargaining rights against the railroad. 
The release demands access to criminal background information, of 
course, but also credit records, among other items. No one has yet 
articulated a convincing reason to me as to why a credit report is 
required to do a criminal background check. Employees who protest this 
requirement are advised to sign the document or they will be 
discharged. This seems to be a completely inappropriate sharing of 
personal information with employers as well as the railroads.
    The railroads must be committed to protecting the privacy of our 
members and should work to limit the notification process to the 
applicant's background check status only. Employers should not be 
provided a complete and detailed background check of each of their 
employees, regardless of the security determination. Furthermore, it is 
essential that personal data be cared for and discarded in ways that do 
not compromise privacy or lead to theft of personal information. To 
every extent possible, information gathered for a criminal background 
check should be encrypted in a Department of Homeland Security (DHS) 
database so that unauthorized access is avoided. We feel strongly that 
if these background checks come under government requirements that DHS 
not contract out any of the application process to private contractors 
operating for profit. The urge to maximize profits could cause 
sensitive information to be compromised.
    The list of disqualifying offenses is opaque. Virtually all the 
cases I am familiar with involve drug offenses. While Local 705 does 
not condone unlawful drug use, there is no reason to believe that these 
people constitute some extraordinary threat to the nation's rail 
system. As the Teamsters Union has testified in the past, there should 
be a close nexus between disqualifying crimes and the job to be 
performed. An example of the bureaucratic nightmare that can result is 
the following: one of our members was convicted of auto theft when he 
was a young man. After he served his sentence, he applied to work at 
one of the rail yards for a vendor whose workers were represented by 
Local 705. He informed the employer on his application of his criminal 
record. He had a spotless work record for five years and no further 
criminal history after his conviction. In August of 2004, he was 
summarily terminated because he lost his badge due to his criminal 
record. Local 705 was powerless to support him, because we had no 
recourse against the railroad. We assisted him in getting another job 
at another local rail yard doing exactly the same work. He worked there 
until seven years had passed from the time of his conviction. He was 
then rehired by his original employer and was granted a badge for the 
very rail yard from which he had been expelled two years previously. I 
see no national security purpose that was served by this farcical 
episode. Rather it seems arbitrary, unfair and pointless.
    The list of disqualifying offenses should be better defined to 
include only those offenses that have a consistent and direct link to 
national security. Once these individuals have paid their debt to 
society they should not be unfairly restricted from obtaining 
employment.
    The most critical component of this system is the denial of a badge 
to individuals who have a felony conviction within the last seven years 
or who have been discharged from serving a felony sentence in the last 
five years. I strongly recommend the reconsideration of the existing 7/
5-year look-back periods. It is clear that these time frames were 
adopted from the hazardous materials endorsement process, in an effort 
to allow for unity in the way in which transportation workers are 
treated. I urge the reconsideration of the five and seven year periods 
for disqualification.
    Once an employee has been denied employment due to a failed 
background check, he can either disappear, presumably into the welfare 
or criminal justice system, or he can try to appeal. While e-railsafe 
has an appeal process and I am aware of one or two individuals who have 
been restored to work due to mistakes, the system seems arbitrary and 
unfair. Moreover, the employee who is returned to work is not 
compensated for is lost time or wages during his enforced hiatus.
    Moreover, the system lacks any mechanism for a person to challenge 
the assertion that a particular crime constitutes a disqualifying 
offense. This is particularly a problem with the broader offenses. If 
there is concern about crimes such as forging passports, immigration 
papers and other identity documents, those should be spelled out. 
However, disqualifying an individual for a felony involving fraud and 
dishonesty could include passing bad checks. If writing bad checks 
makes someone a terrorist threat, then many hardworking Americans would 
be considered a security risk. Thus, the problem may be partly resolved 
if the list of disqualifying crimes is revised to include more specific 
offenses. Nevertheless, because criminal codes can vary greatly from 
State to State there may be circumstances where a person is convicted 
of an offense that seems to constitute a disqualifying offense but was 
not necessarily intended to be one. I urge for language granting 
employees the ability to challenge the characterization of a particular 
offense either in the appeal or waiver process.
    More generally, I urge that appeal decisions should be made by an 
Administrative Law Judge or some other third party not officially 
linked to the railroads. This would allow employees to make their case 
in front of an impartial decision-maker not bound by political pressure 
or subject to interference. Only recently, has the Department of 
Homeland Security allowed for an appeal to an Administrative Law Judge 
in the case of the TWIC in the maritime industry and pending 
regulations for background checks in the chemical plant industry. The 
old process forced workers to appeal to the same agency that just 
determined that they are a security threat. Furthermore, Administrative 
Law Judge decisions would establish case precedent that would better 
define what constitutes a security risk. This would bring fairness and 
consistency to a system that is central to both employee rights and 
national security. For these reasons, I urge the modification of the 
appeal process to include the independent review of these requests.
    I also recommend strongly that you study the possibility of 
combining other programs currently underway within the Department of 
Homeland Security with the security threat assessment program for the 
rail yards. The TSA had indicated that it would consider the 
consolidation of several programs to improve efficiency while 
fulfilling security needs. [69 Fed. Reg. 68723].
    It seems logical that all security threat assessment programs 
should utilize the same, or nearly the same, system for security threat 
determinations, as well as the same infrastructure such that the costs 
associated with these programs (both to the agency responsible for the 
programs and to the individuals involved) can be minimized. I believe 
that consolidation of security programs will offset some of the costs 
associated with this program and minimize any additional fees that will 
be assessed on the hazmat endorsed drivers as a result of this program. 
To that end, I urge examination of all security threat assessment 
programs, as well as the infrastructure needed to administer these 
programs, with the ultimate goal of consolidating as many as possible.
    I believe that we must have a safe rail transportation system; 
after all, our members are on the front line in any potential attack. 
However, a vigorous effort must be made to balance the interests of 
increased security with the protection of employee rights. It is my 
hope that the recommendations I have discussed today will be 
incorporated to further improve this balance.
    With that, I thank you again for the opportunity to testify today. 
I'd be happy to answer any questions you may have.

    Ms. Jackson Lee. Thank you, Mr. Marinez. We thank you for 
traveling from Chicago and making this journey and giving us, 
again, this instructive testimony.
    I now recognize Mr. Jamison to summarize his statement for 
5 minutes.
    Mr. Jamison? Thank you.

     STATEMENT OF ROBERT D. JAMISON, DEPUTY ADMINISTRATOR, 
             TRANSPORTATION SECURITY ADMINISTRATION

    Mr. Jamison. Good morning, Madam Chairwoman, Ranking Member 
Lungren, Chairman Thompson, Chairman Conyers, Chairwoman Brown 
and members of the subcommittee.
    I am pleased to have this opportunity to testify on the 
impacts of background and security clearances on the 
transportation workforce.
    I would like to begin by noting that with the exception of 
limited overlapping requirements of other congressionally-
mandated programs, the Department of Homeland Security neither 
performs nor requires rail operators to conduct background 
checks on rail workers.
    However with over 233,000 employees supporting 
transportation across the nation's railroads, the issue of 
proper background checks and credentialing is something that 
TSA takes very seriously.
    A fundamental part of our security strategy across all 
modes of transportation is to utilize our threat and 
vulnerability assessment and knowledge of the industry to 
develop baseline measures that raise the baseline of security.
    We continue to work with the government and industry 
partners to develop, recommend and implement security action 
items to reduce risk.
    As you know, last summer, TSA, in partnership with DOT and 
the rail industry, issued a set of action items for rail 
transportation of toxic inhalation materials. These actions 
were and are designated voluntary.
    One of the recommendations was to establish procedures for 
background checks for contract employees with unmonitored 
access to company-designated critical infrastructure.
    As with other recommendations, we stand behind this 
recommendation as an important fundamental security practice.
    At the time of issuance, we did not provide specific 
requirements, procedures or standards to industry for these 
checks, nor did we mandate their application to any specific 
group of employees.
    As a result of the interest of this committee, Chairman 
Conyers, Chairman Thompson and others, and to ensure the 
fairness to rail workers, TSA has quickly issued additional 
voluntary guidance on background checks for rail workers.
    Utilizing the experience we have obtained from the 
implementation of our other vetting programs, we have 
recommended that operators set standards and procedures similar 
to those used in the hazardous materials endorsement in 
transportation worker identification credential, or TWIC, 
assessments, including the use of federally-established lists 
of disqualifying crimes.
    We have also recommended that operators establish vigorous 
appeal and internal redress processes for adversely affected 
applicants and personnel.
    Finally, TSA is extremely concerned with potential misuse 
of the TSA name or the homeland security name to conduct 
actions that are not directly related to the security mission.
    Consequently, TSA's office of inspection has initiated an 
inquiry to determine whether any misrepresentations occurred in 
connection with the recent terminations of rail workers.
    I thank you for the opportunity to appear today before the 
subcommittee and to clarify TSA's current regulations.
    I am pleased to answer any questions that you may have.
    Thank you.
    [The statement of Mr. Jamison follows:]

                Prepared Statement of Robert D. Jamison

    Good morning Chairwoman Jackson-Lee, Ranking Member Lungren, and 
Members of the Subcommittee. I am pleased to appear before you today to 
discuss the use of background checks for rail workers.
    As you may be aware, there are over 233,000 employees performing a 
wide variety of tasks associated with railroad transportation. With the 
exception of employees whose responsibilities overlap other 
credentialing programs, the Department of Homeland Security (DHS) does 
not perform background checks on these workers, nor do we require rail 
carriers to perform them. A rail carrier may voluntarily conduct 
background checks on employees and applicants, subject to limitations 
imposed by applicable Federal, State, or local law, and the terms of 
any collective bargaining agreements to which they may be subject.
    On June 23, 2006, DHS and the Department of Transportation (DOT) 
issued a set of recommended security action items for the 
transportation of toxic inhalation hazard materials to all rail 
carriers. The action items were the product of rail corridor risk 
assessments conducted jointly by DHS, DOT, and rail carriers, and were 
developed with the concurrence of the Association of American 
Railroads, the American Shortline and Regional Railroads Association, 
and certain rail operators. Included in the action items was the 
recommendation ``[t]o the extent feasible and practicable, utilize 
photo identification procedures for company-designated critical 
infrastructure. Establish procedures for background checks and safety 
and security training for contractor employees with unmonitored access 
to company-designated critical infrastructure.'' The action items do 
not impose regulatory requirements, and their adoption by the railroad 
industry is purely voluntary. TSA stands behind this recommendation as 
an important, fundamental security practice.
    Currently, employees who operate motor vehicles containing 
placarded amounts of hazardous materials must possess a Hazardous 
Materials Endorsement (HME) for their commercial drivers license. In 
order to receive such an endorsement, the employee must comply with TSA 
regulations implemented pursuant to the USA PATRIOT Act and undergo a 
security threat assessment that includes a check of terrorist 
databases, relevant criminal history databases, and alien status 
information. In addition, port workers requiring unescorted access to 
secured areas of port facilities will soon be required to obtain a 
Transportation Worker Identification Credential (TWIC) with a similar 
threat assessment. This will include the many rail workers who require 
unescorted access to secured areas of a port as part of their duties
    TSA has redress policies in place for applicants who are denied a 
TWIC or HME. In the case of a TWIC, denied applicants will be provided 
with information on why they were denied and given instructions on how 
to apply for an appeal or waiver. All applicants have the opportunity 
to appeal a disqualification, and may apply to TSA for a waiver if 
disqualified for certain crimes or mental incapacity, or are aliens in 
Temporary Protected Status. Applicants who are aware of a potential 
disqualifying crime may apply for a waiver immediately after applying 
for a TWIC to expedite the waiver process. Applicants who seek a waiver 
and are denied may seek review by an Administrative Law Judge (ALJ).
    To ensure fairness to rail workers, we have recently issued 
additional guidance on the issue of background checks to rail carriers. 
On February 12, 2007, DHS and DOT issued a second supplement to the 
recommended security action items for the rail transportation of toxic 
inhalation hazard materials. This supplemental guidance was rooted in 
our past experience with current redress policies. Using what we have 
learned from our experience and with stakeholder input, we have 
recommended that operators establish standards and procedures similar 
to those used for HME and TWIC threat assessments, including use of the 
federally established list of disqualifying crimes for those programs. 
Likewise, the appeals and waiver process, which we have adjusted since 
first used for HME, can now be recommended best practices for rail 
workers and other transportation workers. Therefore, we also 
recommended that operators establish procedures that permit employees 
to correct outdated and incorrect records that may disqualify them, as 
well as procedures permitting an employee to demonstrate rehabilitation 
or facts surrounding a conviction that mitigate security concerns that 
may be revealed by the check to allow the employee to either be hired 
or remain employed.
    As with the previously issued recommendations, the recently issued 
guidance is solely voluntary, and is not intended to conflict with any 
other provision of law or any provisions in collective bargaining 
agreements or individual employment contracts. Rail carriers must still 
comply fully with all applicable Federal and State law, including 
statutory employment protections, as well as the regulations, orders, 
and directives of DHS, DOT, or any other government agency of competent 
jurisdiction.
    Lastly, I would like to add that TSA is very sensitive to anyone 
using the name of the Department of Homeland Security or TSA to conduct 
actions that are not directly associated with security. We take this 
issue very seriously and are looking into any possible misuse of our 
name or mission.
    Thank you for the opportunity to appear before you today. I would 
be pleased to respond to questions.

    Ms. Jackson Lee. I thank all the witnesses for their 
testimony.
    I remind each member that he or she will have 5 minutes to 
question the panel.
    I will now recognize myself for 5 minutes.
    Let me, in the framework of the remarks made by both the 
full committee chairman and the ranking member of the 
subcommittee, make very clear the intent of this subcommittee 
and the fact that we believe that we are constructive 
implementators and challengers of language that has not been 
clarified and that has, in many instances, harmed thousands of 
workers.
    So the action of this committee today is to bring all of 
the principals together so that we can lay a groundwork for 
some of the misstatements and misactions that have occurred.
    We have a basis from which to operate and that is, of 
course, the February 12, 2007 recommended security action 
dealing with rail transportation. Some aspects of that language 
has helped somewhat the clarification, but it is not fully 
clarified, I think the context that brings us here today.
    And, clearly, the hearing is not in any way to suggest that 
we do not live in a different climate and that homeland 
security does require diligence, but I think along with 
diligence it requires a fair understanding, and the witnesses 
here today have raised some very important questions.
    Let me start, Mr. Jamison, with you.
    Mr. Jamison, rail companies are pointing to the Department 
of Homeland Security and its new standards as the cause that 
might have generated recent firings that you have heard, in 
particular, in the city of Chicago, but this has occurred in 
other areas around the nation.
    Please tell us, with a yes or no answer, whether the 
department is responsible for those firings.
    Mr. Jamison. No.
    Ms. Jackson Lee. We would also like to know what was the 
department's intent when it issued supplement number two to the 
action items on June 23, 2006, and please explain why the 
department issued this clarification.
    Mr. Jamison. The clarification, the original supplement 
number two that you refer to, issued in June, was to finalize 
some best practices or industry security action items that had 
been debated and we weren't able to get consensus on when we 
issued the original items.
    But more in focus, they also were to focus the industry on 
what we considered to be the most important risk reduction 
measures that they could take.
    So the second issue of guidelines, you see us focusing on 
the security and the reduction of standstill time for toxic 
inhalation materials in high threat urban areas.
    There were four items that were mainly addressed in that 
additional supplemented guidance and it was mainly on 
operational procedures around reducing risk in high threat 
urban areas, toxic inhalation materials, but the additional 
supplement did not include any issues with background check.
    Ms. Jackson Lee. So it might be accurate to say, as you 
have said in your testimony and as the industry has said, we 
want best practices. We would like to ensure that the homeland 
is secured.
    But you did not have direct actions that would then result 
in direct instruction to fire workers.
    Mr. Jamison. No, ma'am. With every industry, especially 
after 9/11, as we look at the different modes of 
transportation, everybody is wanting to be proactive and take 
actions in the name of homeland security.
    So we tried to quickly utilize threat and vulnerability 
assessments and our other knowledge of the industry to give 
recommendations so that they focus their areas on what is most 
important.
    The recommendation for background checks is one of those 
broad recommendations and thanks to the interest of this 
committee, we have clarified and given more guidance, as this 
was brought to our attention, but it was a broad 
recommendation, just like we do with other industries, on what 
actions they should take.
    Ms. Jackson Lee. Mr. Marinez, let me quickly ask you, do 
you know where credit checks of your employees precluded a 
worker from continuing their employment?
    And I would like Mr. Hamberger to also answer the question 
as to what actions occurred in the industry when they got the 
initial communication from TSA.
    So you can clarify, again, how you responded to it and how 
you are correcting it.
    Mr. Marinez? And those are my last two questions.
    Turn your microphone on.
    My question was, do you know of any situations where an 
adverse credit history precluded a worker from continuing 
employment at the rail yard.
    Mr. Marinez. Not at this time, I don't.
    Ms. Jackson Lee. Mr. Hamberger, would you comment on how 
you responded?
    Mr. Hamberger. Thank you very much, Madam Chairwoman.
    As I tried to make clear in my opening statement, the 
origin of the background check for contractor employees was an 
initiative of the freight rail industry.
    We have taken many such initiatives since 9/11 and we are 
proud of the role that we have played in trying to secure our 
operation.
    With respect to the interplay between TSA and the industry 
on background checks of contractor employees, we did work with 
TSA to come out with 24 recommended voluntary action items, 
number 15 of which is to establish procedures for background 
checks for contractor employees with unmonitored access to 
company-designated critical infrastructure.
    So that was an agreement. That was something that we 
committed to do. We committed to the Unite States government 
that we are going to do background checks on contractor 
employees.
    In the press release announcing those 24 action items, the 
department said, dated June 23, 2006, ``Where applicable, 
implementation of these action items to their fullest extent 
practicable should be the goal of the affected property owner 
and operator.''
    We take these things very seriously. When we commit to do 
it, when we are told by the United States government that it 
should be the goal to fully implement these action items, that 
is what we did.
    Ms. Jackson Lee. But you admit today that that was not a 
requirement. It was an initiative by the railroads of which?
    Mr. Hamberger. As I indicated, it was not a requirement. It 
is a voluntary action item that we agreed to do. But we looked 
at it as a commitment to do it and we tried to do it to the 
best of our ability and I think the appeals process that we 
announced today, with the work of the committee helping us to 
take a look at that, makes it even better.
    It is an evolving program. We didn't implement it until the 
end of 2005. Not all of our members have even begun to do it.
    Ms. Jackson Lee. Well, we seek clarification today and that 
is what we are going to work on and we--
    Mr. Hamberger. Madam Chairwoman, absolutely.
    Ms. Jackson Lee. --appreciate that clarification. Thank you 
so very much.
    Allow me to yield 5 minutes to the ranking member of the 
subcommittee, Mr. Lungren.
    Mr. Lungren. Thank you, Madam Chairwoman.
    And I might say that it appears that the interest of the 
committee has gotten some of the interested parties together to 
at least make some progress. It doesn't sound like we have 
unanimity as to the extent of the progress, but it does look 
like there is some progress.
    To the two gentlemen representing the unions, I would like 
to ask you this. Can you give us some guidance on what you 
think would be an appropriate list of disqualifying felonies?
    And the reason I ask you that is that is something we are 
dealing with and that is something we are dealing with DHS on.
    As attorneys, and I plead guilty to being an attorney, we 
are subject sometimes to a rule called disqualification of your 
bar rights for any crime of ``moral turpitude.'' That could be 
a felony or a misdemeanor.
    It basically goes to the question of whether you can be 
trusted. I wouldn't suggest that we would go that far. It may 
be better, now that I think about it, some attorneys I know, if 
we had an actual list of disqualifying felonies.
    But, Mr. Willis and Mr. Marinez, could you give us an idea, 
and, if you don't have it here, submit for the record what it 
would be, and would you have differing lists of disqualifying 
offenses depending upon the nature of the work that the 
individual would do?
    Mr. Willis?
    Mr. Willis. Well, it is a great question and it is one that 
I know has come up that you raised last year in several 
instances when we were talking about the HAZMAT program and 
your legislation to try and narrow that, as you referenced in 
your opening statement.
    Look, there is a list of disqualifying offenses that TSA 
has come up with in response for both the maritime and the 
HAZMAT program, that tries to prevent those that, quote, would 
pose a terrorism security risk to the United States.
    We think that was a good standard. We do think some of 
those disqualifying crimes, as we have articulated, may go 
beyond that standard.
    In fact, then Chairman Peter King, with the concurrence of 
the Democrats, issued a statement in the last Congress agreeing 
with that proposition, that those crimes, at least in the 
proposal by TSA, went beyond the standards of a terrorism 
security risk.
    But at least with there, there is an actual list that you 
can look at and, as it stands right now, even after the 
statement today, if a union member walks into our office and 
says, ``You know, I have had some problems with the law in the 
past, but here is what I have done. Is this going to disqualify 
me? Am I going to lose my job at the rail yard,'' I can't tell 
them that, because I don't know what the crimes are.
    They may have misdemeanors. Again, depending on?
    Mr. Lungren. So your suggestion is it would be better to 
have a specific list, even though you are not prepared at this 
point in time to give us that list. Would that be correct?
    Mr. Willis. Well, I think, yes, you should have a specific 
list and I think to get to your original question of should 
there be sort of different standards, I think, yes, that is 
possible, depending on the infrastructure that you are trying 
to protect.
    Mr. Lungren. Mr. Marinez?
    Mr. Marinez. Yes, I also think that you should have some 
specific reasons, the one case in particular, Mr. Lungren.
    Mr. Lungren. You are about the only one in the room that we 
can hear without the mike, but we hear you better with the 
mike.
    Mr. Marinez. I have a particular member in one of my rail 
yards, the mother of 4 children, was pulled out of service 
for--she had a stolen identity charge on her she was not aware 
of.
    She was pulled out of service for 6 weeks, managed to get 
her job back, cleared it all up. And this was a charge that she 
was not even aware of.
    Mr. Lungren. So if there had been an expeditious appeal, so 
it wouldn't take her out for 6 weeks, that would have solved 
that problem.
    Mr. Marinez. Part of that is the contractor there was not 
aware of an appeal process and there is a problem, sir.
    Mr. Lungren. See, this is an issue that we deal with not 
only on this committee, but on the Judiciary Committee with Mr. 
Conyers. We have been trying to work out something with respect 
to maintaining a prison industries system that works so that 
you can actually encourage people, while they are incarcerated, 
to get some work skills and it is not an easy thing, because 
you have people that object as it works.
    So I don't think this is a partisan issue. I think this is 
a bipartisan issue, how we try and figure out how we extend the 
opportunity to work for people that we want rehabilitated--I am 
talking about those who have had difficulty with the law in the 
past--and, yet, at the same time, maintain that kind of 
vigilance that is necessary.
    It is not easy and we are not trying to convey to you that 
we think it is easy and we appreciate you coming here and 
trying to help us with that.
    Ms. Jackson Lee. Thank the ranking member.
    And with that, as I yield to the full committee chairman, 
let me emphasizes it is not a partisan issue and I think we can 
work through this for a better solution.
    I yield 5 minutes to the distinguished chairman of the full 
committee, Mr. Thompson.
    Mr. Thompson. Thank you very much, Madam Chairman.
    Mr. Hamberger, if you would, could you provide the 
committee with a copy of this new guidance you referenced in 
your testimony?
    Mr. Hamberger. Yes, sir. There actually is a chart which I 
meant to draw your attention to attached to my testimony, which 
lays out a flowchart as to how it is designed to work.
    Mr. Thompson. Okay, I understand the chart. Do you have the 
narrative explanation?
    Mr. Hamberger. Yes, sir, I can get that. Yes, sir.
    Mr. Thompson. That is what we are looking for. And I want 
to compliment you for doing that.
    One of the reasons we are here is because with the Chicago 
situation, there was no clarity on due process. And as I said 
in my opening remarks, this is America and every citizen is 
entitled to do process and that is clearly the spirit that got 
us here today.
    But I am also troubled whether or not we have objective 
criteria and standards put forth so that subjectivity doesn't 
come into play, if you understand what I am saying.
    If a worker for one company is summarily discharged, but 
that person can go to another company and do the very same job 
and 2 years later go back to the job that they just left, 
something is wrong.
    And I think we still have to have uniformity and part of we 
are looking at, as you know, we are taking up a rail bill and 
it might be that we have to have more oversight by DHS in this 
process.
    So we will have a rail bill next month and I think what we 
glean from this hearing and others will have strong argument 
for having some aspect of it in that rail bill.
    Now, Mr. Jamison, I want to be clear, from the department's 
perspective. At this point, there is no DHS requirement or 
directive of guidance beyond what was released earlier in the 
week with reference to our situation we are discussing today.
    Am I correct?
    Mr. Jamison. That is correct, sir.
    Mr. Thompson. Because part of what got us here is that when 
people started inquiring, DHS was getting the blame. So when we 
convened the meeting, we found that, indeed, it was not DHS, 
that it was just basically a rouse being put forth by the 
companies just to say that this was what was happening.
    So I am of the opinion that we have in place the policy. We 
need to go forward with that. But I am convinced now, because 
we had to have a hearing, that we absolutely have to have some 
federal oversight if this is going to be implemented and 
maintained properly.
    Mr. Willis, can you briefly give me whether or not you 
think there is a federal role on behalf of workers in this 
process?
    Mr. Willis. I am sorry?
    Mr. Thompson. Can you tell me whether or not you think DHS 
or the federal government, in general, should have a role in 
this particular process?
    Mr. Willis. Well, there is no question that there needs to 
be some role here and some oversight.
    And I the distinction here is important that, yes, 
background checks, as a general proposition, may indeed have 
been a recommended practice for various reasons, but it doesn't 
specify what type of background check process you are going to 
have.
    And, in fact, I have not reviewed it, but to the extent 
that TSA has issued additional guidance, I think that is good, 
but clearly there is a role for federal government oversight, 
from our standpoint, to ensure that you have basic protections 
in place.
    Again, in the maritime and HAZMAT, those are statutory 
protections. There are privacy protections. There is a right to 
an appeal. There is a right to waiver with an administrative 
law judge. There is a statutory look-back, et cetera.
    So, yes, if you are going to have these checks, there needs 
to be some protections and I think the federal government has a 
role to play to make sure that happens.
    Mr. Thompson. Thank you.
    I yield back, Madam Chair.
    Ms. Jackson Lee. I thank the chairman.
    It is my pleasure to yield to Mr. Bilirakis for 5 minutes.
    Mr. Bilirakis. Thank you, Madam Chair.
    Mr. Jamison, I am sure that you are aware that my state of 
Florida has been a national leader in developing its own port 
access credentials. In fact, the state entered into an 
agreement with TSA in 2003 to implement a TWIC prototype.
    My understanding is that the state's version is virtually 
interchangeable with the TWIC, with certain exceptions. 
However, there are questions about whether Florida's 
credentials will meet the federal requirements.
    My staff recently met with TSA officials who have pledged 
to continue to work with our state on this issue and I 
understand that Representative Brown-Waite has been on the 
forefront on this issue and I appreciate it very much that she 
has.
    Will you commit to working with me and my state and other 
members of the delegation to help address this situation so 
that transportation and maritime workers in my state will not 
be required to obtain multiple cards for the same security 
purposes and operators will not be required to purchase 
separate systems to read them?
    Mr. Jamison. Congressman, first of all, we value the 
relationship we have had with the state of Florida and, as you 
note, we have worked with them over the last several years on a 
model program or at least a pilot program for the TWIC program 
and we also appreciate them being proactive in the area of port 
security.
    Sometime in the past, over the past year, Florida made a 
decision to move forward more quickly and expeditiously with a 
worker identification card. At that point in time, we had 
notified them that we had not yet finalized our national 
standard and there were some concerns; if they went forward, 
they were at their own risk because of interoperability and the 
congressional mandate for what the requirements would be with 
the TWIC card.
    Now, that being said, we would be happy to continue to work 
with your staff and the state of Florida to see what areas that 
we might be able to compromise, but we are committed to meeting 
the congressional mandate of having a national interoperable 
card for all port workers.
    Mr. Bilirakis. Thank you very much.
    Do you believe that some of the problems that have been 
discussed here today at this committee meeting about background 
checks for railroad workers will also be concerned with the 
maritime workers undergoing the TWIC background checks?
    Mr. Jamison. Well, I am confident that we have learned a 
lot since September 11 and actually even credentialing was 
required and background checks were required for airport 
workers prior to September 11. So we have learned a lot through 
the last several years.
    And the TWIC process has a robust appeals process and a 
robust waiver process that is a part of that rulemaking, as 
well as the provision to appeal the waiver to an administrative 
law judge procedure.
    So it is a very robust process. We are confident it is a 
good process and a fair process.
    Mr. Bilirakis. Thank you.
    TSA and the Coast Guard are working to implement the TWIC 
in the maritime mode early this year. Is TSA considering 
including other transportation modes in the future?
    Mr. Jamison. Well, originally, when the TWIC card was 
discussed, the long-term vision is that this would be an 
interoperable credential for all modes of transportation that 
had critical infrastructure.
    There currently are no plans to expand that to anyone other 
than the port workers at this point. We are going to work 
through the port worker implementation and continue to monitor 
risk in worker populations before we make a determination about 
the next phase.
    Mr. Bilirakis. Thank you. Thank you, I appreciate it.
    Thank you, Madam Chairwoman.
    Ms. Jackson Lee. Thank you.
    I yield 5 minutes to the distinguished gentlelady from the 
District of Columbia, Ms. Eleanor Holmes Norton, for her 
questions.
    Ms. Norton. Thank you, Madam Chair.
    Mr. Hamberger, your industry deserves a lot of credit for 
having, in the past, hired ex-offenders. It is an old industry 
who understands and has learned and had enough experience to 
know how to do that.
    Why are ex-offenders who have been employed in your 
companies for some time, apparently with good records, now 
being fired under your RAILSAFE program?
    Mr. Hamberger. Well, not to be too technical, but to be 
precise as to how the e-RAILSAFE program works, it is not for 
the employees of the individual companies. It is a background 
check on the employees of the companies with whom the railroads 
have a contract to provide a service.
    We do not fire them. We determine whether or not there is a 
risk to the safe workplace, also from a security standpoint, 
also from a drug standpoint, because as you know, we are a 
highly regulated industry from the standpoint of drug use.
    And so we take--
    Ms. Norton. Say it again. You don't fire who?
    Mr. Hamberger. The specific program we are talking about 
today, e-RAILSAFE, does not apply to the employees of the 
railroads. We do a screening process at the application 
standpoint when an applicant for a position with the railroad 
comes to apply for a job.
    That is when we do the background check. The individual 
companies do the background check. That is not done through e-
RAILSAFE.
    Ms. Norton. Well, you are aware that long-time employees 
have, in fact, been fired.
    Mr. Hamberger. Not from the railroads, no, ma'am.
    If a decision has been made by a contractor, like H&M, that 
is the decision of the contractor.
    What the railroad was involved in, if I can get into the 
specific perhaps of the Chicago situation that has arisen in 
the past couple of months, there were, as I understand it, 33 
employees of H&M who were denied access to two different rail 
yards.
    One of those yards was a Union Pacific rail yard. Thirty of 
the 33 employees were being checked, the background check, came 
forward, 30 of them were denied access. They were given a right 
of appeal individually. Fifteen of them have been reinstated, 
six of the appeals were denied, and nine have not yet appealed.
    The other three in the Chicago situation were Norfolk 
Southern yard. They were apprised, the employees were apprised 
of their right to appeal. No one has appealed yet.
    And I appreciate your opening statement, it is a very long 
time industry. And the point I would like to make, to echo Mr. 
Lungren's comment that this is not a partisan issue, 
notwithstanding what you may observe here at the witness stand, 
this is not an issue between rail management and rail labor at 
its core.
    We want rail employees. We are looking to hire 80,000 
people in the next 5 years. We are not turning people away 
willy-nilly. We want people to come work for this industry. 
There are good jobs. We want people to work here.
    But we have an obligation to the safe workplace, to 
security and to protecting the property of the customers who 
give us that property to move to do a background check.
    Ms. Norton. You have testified about fusion and your own 
processes and about the fact that some may have, as you say on 
the last page of your testimony, may have conveyed the 
impression that this was required by the federal government, 
that many contractor employees may not be aware that they had a 
right to appeal.
    What redress should railroads how give to those who were 
not aware that they had the right to appeal or did not or were 
not allowed to appeal?
    Mr. Hamberger. I don't know that we have access to the 
database for those people. I do know that over the course of 
2006, about 75,000 people were run through the e-RAILSAFE 
program. About 4 percent were denied access to rail property.
    Ms. Norton. If those people were to come forward, inasmuch 
as you concede the confusion was not theirs--
    Mr. Hamberger. I think that it would be appropriate, if it 
is their interest to come forward and appeal that denial, that 
this process would apply, absolutely.
    Ms. Norton. Thank you, Madam Chair.
    Ms. Jackson Lee. I thank the distinguished member for her 
questions.
    And I now yield 5 minutes to the distinguished member from 
New York, Ms. Clarke, for her questions.
    Ms. Clarke. Thank you very much, Madam Chair. And good 
afternoon, gentlemen.
    I just wanted to ask, Mr. Hamberger, under the e-RAILSAFE 
program, has there, in your assessment, been a typical length 
of time for the adjudication of an appeal and what is that time 
period?
    Mr. Hamberger. Thank you for that question.
    We have just unveiled this new appeals process and we are 
going to be putting something out. I know one company has 
announced that they would intend to have a decision within 5 
days.
    I don't know whether that will be the standard, but 
certainly that is the intent, that there would be an immediate 
notification to the employee that the employee could come 
forward with any clarification, corrections, mitigating 
circumstances, and that, when that was received, it would be 5, 
7, 10 days at the outside would be my guess.
    But we have not nailed down an industry--
    Ms. Clarke. So your association has not encouraged an 
industry standard as of yet.
    Mr. Hamberger. We have encouraged it, but have not yet 
achieved it.
    Ms. Clarke. I think that that is a critical part of this.
    Mr. Hamberger. Yes, ma'am.
    Ms. Clarke. We are talking about the dignity of the 
individuals involved here and I think while we are certainly 
concerned about homeland security, the individuals who come 
under this category and I would say probably the majority of 
cases that you are dealing with have paid their debt to society 
and, having paid that debt, should enjoy, as the rest of us do, 
civil liberties and the right to employment.
    So it is my hope that the industry would sort of put that 
in the framework, because as has been stated by Ms. Holmes 
Norton, your industry has been a trailblazer and has been one 
of those areas where many have been able to go and resume life 
and be meaningful and product in giving back to society.
    So I hope that you will certainly frame things in that way. 
And thank you for your testimony here today.
    Mr. Jamison, I wanted to ask, is there any notification 
that is required to DHS once these background checks have 
flagged individuals that pose or that, I guess, the system 
indicates poses a threat to homeland or national security?
    Mr. Jamison. No, ma'am. Again, it is just a broad 
recommendation from DHS and TSA to implement these background 
checks. So we are not providing oversight or are we performing 
a similar function like we do with TWIC and/or HAZMAT in 
adjudicating names against the terror screening database. We 
are not doing that.
    Ms. Clarke. You are not doing that. Because it just seems 
to me that there is a hole there, because at the end of the 
day, what we are trying to do is identify individuals that pose 
a real threat from a homeland security standpoint, from a 
national security standpoint, that there would be some 
interfacing and some liaising with those companies and 
corporations, if they are not operating in a subjective manner, 
in getting that information to you and you sort of and your 
agency sort of serving as a partner, I think and I believe, in 
determining whether, in fact, the level of threat that has been 
imposed upon an individual indeed is a threat.
    I mean, that is where the subjectivity actually comes in.
    Mr. Jamison. Congresswoman, we are pleased to work with any 
industry member that brings us a potential list of employees 
that they might be concerned with and that we could utilize a 
terror screening database search on.
    And we are continuing, as I mentioned earlier, the broad 
range, long range goal of the TWIC program is to address a 
comprehensive transportation worker identification credential 
to include other modes of transportation, if they have access, 
just like in the ports, access to what is defined as secure 
areas.
    We currently have no plans to expand that right now. We are 
dealing with the port side of that. But we would be happy to 
work with employers that have a particular interest in 
particular employees.
    Ms. Clarke. And to Mr. Willis and Mr. Marinez, are there 
areas that you have identified where an abuse of the screening 
process is something that you have observed time and time 
again?
    Thank you, Madam Chair, for the time.
    Mr. Marinez. Again, yes, it is misapplied and contractor 
vendor itself not applying the process to the members, it is 
just not--it is very unfair. The members are not made aware of 
it and, like I say, they say they are in the dark about it, 
that they didn't know there was an appeal process.
    And our members are suffering without the pay and, like I 
said, it has happened quite a few times. There is a lot of 
stories. I could go on and probably need 10 more bottles of 
water to go through that.
    Mr. Willis. One of the comments that was made earlier by 
Mr. Hamberger was that--
    Ms. Jackson Lee. Mr. Willis, if you could quickly summarize 
your answer.
    Mr. Willis. I will stop there.
    Ms. Jackson Lee. If you can finish your sentence. Did you 
have an answer? You don't have an answer. Well, we will hope 
that you will have an answer shortly. Thank you.
    Mr. Perlmutter, you are recognized for 5 minutes.
    Mr. Perlmutter. Madam Chair, if it is permissible, because 
I had to step out, I would like to pass and then if there are 
any questions at the end, can you come back to me?
    Ms. Jackson Lee. That certainly is permissible, Mr. 
Perlmutter. We thank you so very much.
    With that, we would like to yield to Mr. Conyers for 5 
minutes.
    Mr. Conyers. Thank you so much.
    I commend the chairwoman on these hearings, along with our 
other judiciary colleague, Mr. Lungren. I think this is working 
out very well.
    Now, here is what I need to know and I have asked the chair 
if we can have this information forwarded to her. About 71 
people have been fired, maybe more. What we are trying to do is 
to find out why they were fired and what are their 
possibilities for being restored.
    In other words, this is in real time now and this committee 
will get all the rules and regulations ironed out.
    But 71 people have lost their jobs so far. How many of them 
have terrorist vulnerabilities or backgrounds that make them 
dangerous? We want to keep a database going to the chairperson 
of the committee about this.
    Incidentally, Madam Chair, a person who is of Michigan 
interest, former Secretary of Transportation Rodney Slater, has 
joined us and I know you would want us to know of his interest 
in this matter that brings him to the hearing room.
    How many of these people discharged can be returned?
    Look, this is down on the table. If there have been mix-ups 
and screw-ups and inadvertencies, fine, but let's get some 
people back to work. That is what I want to find out.
    And as a son of a family of people involved in the labor 
movement, not to mention myself being a labor lawyer and a 
former workman compensation referee, what are the unions doing 
about this?
    Now, I will tell you what I have been hearing, my brothers 
of labor, is that you are saying there is nothing that can be 
done. I have been getting zero. And the unions have a 
responsibility to step up to this thing.
    That is what these people are paying union dues for. You 
are losing. I know you are down to 12 percent of the workforce 
in America in unions. This is a time especially for the unions 
that are represented here to leap forward into this and let's 
get this thing rolling.
    I feel very strongly that we have all got to do something 
in it. So if you understand where I am coming from, that we are 
going to start tracking these discharges person by person and 
we want, where there is error committed, to get them back to 
work.
    What is wrong with that? And I yield to all of you for any 
advice you want to give me about this.
    Mr. Willis. Well, first of all, from a transportation 
trades perspective, we don't represent the union nor the 
workers in Chicago. So I will let my brothers from the 
Teamsters speak to that.
    As I said at the outset, we do represent two unions, TCU 
and DRS, that do have workers that are covered by this. TCU has 
had several workers that have been caught up in this. Some have 
been able to appeal and get back, not all, though.
    They have been very aggressive in any means at their 
disposal, including filing unfair labor practices and trying to 
work with the employer to get those members their jobs back, 
and, again, I think in many instances they have.
    Also, quite frankly, we have been very active about coming 
up to the Hill and talking to this committee and others about 
this problem.
    Quite frankly, many months ago, when we appreciate the?
    Mr. Conyers. Okay, your intentions are well taken. We have 
only got a few seconds left.
    My brother from the Teamsters?
    Mr. Marinez. Congressman Conyers, we are trying to do our 
best to represent these men. The problem here that is very 
frustrating is these railroads have to be held accountable, 
also.
    When I write to them, when I call them and they don't want 
to answer me because we are dealing with a different vendor and 
what have you, this gets very frustrating to us, and they have 
to be accountable also for these actions.
    They implement these rule changes. This has to stop. They 
have to set the guidelines, also.
    Mr. Conyers. Thank you, sir.
    Mr. Hamberger. If I might respond to the 71, Mr. Chairman. 
It is my understanding that of those 71, 33 were denied access 
to a freight rail terminal. The other 38 had nothing to do with 
the e-RAILSAFE program. H&M would have to explain to you why 
they were terminated.
    But of the 33, 21 have appealed. Of those 21 appeals, 15 
have been granted and the other 12 have not appealed.
    Mr. Conyers. I thank you all and I am grateful to the 
chairwoman, who has agreed to start her own internal database 
so that this doesn't become a hearing in which we are dealing 
with myriad cross-contradictory rules and regulations and 
resubmissions and new ones.
    There is a human element here and I yield to nobody in 
conclusion about supporting background checks, I mean, for 
goodness sake, and we have to be prepared against terrorist 
activity.
    Has anybody ever dug up a terrorist working in the 
railroads yet in the 5 years we have been in this stuff? One.
    I yield back.
    Ms. Jackson Lee. Thank you, Mr. Conyers.
    And this committee will ask for, as you have requested, a 
list of all of those who have been most recently impacted under 
this particular background check, and what we want is 
consistency and we will pursue that in just a moment.
    Let me again acknowledge the former secretary of 
transportation, Mr. Rodney Slater, if he would make himself 
known.
    Thank you so much, Mr. Slater, for your presence here today 
and also for your service to this nation, we fully appreciate 
it, and thank you for your presence here.
    It is my pleasure now to yield to the subcommittee chair of 
the collaborative committee on the Transportation 
Infrastructure Committee, Corrine Brown of Florida, 5 minutes 
for her questions.
    Ms. Brown. Thank you, Madam Chairwoman, and thank you, 
ranking member, for giving me the opportunity to sit in on this 
meeting.
    In the future, I will certainly make sure everyone has the 
notice, but I had a break in the schedule and this is such an 
important committee hearing.
    Let me just say that this is a problem in rail, but this is 
also a problem in port security, it is a problem across the 
board. And I realized, when we were doing the port security, 
that we were going to have a problem in this area.
    But I think part of the problem is the lack of common 
sense. If we go back to 9/11, and I have said it over and over 
again, there was no American on either one of those planes that 
brought those planes down.
    And so many of America's taxpayers that have had some 
discretion in their use, but the jobs that we are talking about 
are hard jobs, but they are important jobs to America, 
important jobs to keep people moving.
    And, in fact, when a person has some useful discretion or 
has some problems, we have got to make sure that somebody 
offers them a job other than the drug dealer. This is the 
problem we are experiencing with over 108 homicides in 
Jacksonville.
    We have got to find ways to have better education, better 
training, and these are decent jobs we are talking about. These 
are jobs that we know take care of one's family and have people 
to be taxpayers.
    And so I guess I want to go with a couple of questions. 
First, I guess I would go to homeland security.
    When you all issued your report recently, can you tell me, 
was there anything in there about personal checks financing? 
Because I understand that that was an aspect that was 
considered, if you had some bad checks or your financial 
report.
    I mean, I would be concerned, anybody roaming around 
through one's finances. So you tell me what that has to do with 
homeland security, except credit cards.
    Mr. Jamison. No, ma'am. The original recommendation just 
said to conduct background checks on individuals that had 
unmonitored access to company-designated critical 
infrastructure.
    The subsequent guidance clarification that we issued this 
past Monday basically asked them to consider aligning the 
programs similar to TWIC and HAZMAT, which has a published list 
of federal crimes and also has an appeals and waivers process.
    Ms. Brown. And we have a copy of that as we speak.
    Mr. Jamison. Yes, you do.
    Ms. Brown. Mr. Hamberger, can you tell me where we are and 
how we are going to clean this up? Because I was told that this 
company is a third-party company that will pay $50 if you find 
that I am not eligible, but if you find that I am eligible, you 
get $30.
    So you have an incentive there to make me not eligible. I 
hope that is not true.
    Mr. Hamberger. I am unaware of the specific issue that you 
raise there, Madam Chairwoman. But where we are, I believe, is 
that the industry has a very robust pre-screening process for 
our own employees and we have extended that now to employees of 
contractors as a way to make sure that it is not just security, 
and I think that is important for this committee to understand, 
that we go beyond terrorism.
    We look at this through the prism of terrorism, workplace 
safety, drug use, theft, which is not part of the TWIC 
disqualifying crime, because we are entrusted with millions, 
billions of dollars worth of property that our customers give 
to us.
    So those are things that we need to take a look at. But 
your point is well taken and you know probably better than any 
firsthand the effort that we are going through to keep pace 
with the growing demand for freight transportation and the need 
we have to get more employees into the industry.
    So we are not disqualifying people because it is something 
we want to do. It is something that we feel, again, for the 
safety and security of the workplace, that we have to.
    But we are out vigorously trying to attract more employees 
to this industry.
    Ms. Brown. I understand that you are.
    I have a question. If I have been working for you for 5 or 
6 years and, of course, you knew about my criminal record when 
I came to work, what has changed? I have done a good job. Why 
would you just--
    Mr. Hamberger. With respect to the employees of the rail 
companies themselves, nothing has changed. All this background 
check is done at the application, pre-employment time and it 
actually, I am told by the individual railroads, that pre-
employment screening is actually much more complete than the 
screening process, the background check that is done for 
employees of the contractors.
    What our security committee decided, and, again, I will 
emphasize that we did this on our own initiative in 2005, is 
that contractor access to critical assets could be just as 
damaging from a security and/or workplace safety standpoint as 
our own employees.
    So we decided that we needed to do a background check for 
the employees of our contractors and that just rolled out at 
the end of 2005 and I am hopeful that today we have improved 
upon that process so that employees of those contractors who 
are denied access to our property are aware of and have that 
right of appeal.
    Ms. Brown. Just in closing, but that right of appeal, how 
timely is that process going to be?
    Mr. Hamberger. Well, as I was saying to Congresswoman 
Clarke, it is not something that we have settled on as an 
industry. I know one railroad has committed to a 5-day 
turnaround.
    And as soon as the decision is made to deny access, there 
would be a letter sent to the contractor, a letter sent to the 
employee alerting him or her of the right to appeal, how to do 
it, what kinds of information to bring forth, and then once 
that information is received, there would be, at least in this 
one instance, 5 days and--
    Ms. Jackson Lee. The gentlelady's time is up. Thank you.
    Ms. Brown. Would you let him finish, please, answering that 
question.
    Ms. Jackson Lee. If he is concluding in two more words.
    Mr. Hamberger. Shortly.
    Ms. Jackson Lee. Thank you.
    Mr. Perlmutter, you are recognized for 5 minutes.
    Mr. Perlmutter. Thank you, Madam Chair.
    Mr. Hamberger, I read your materials. I was here for most 
of your opening statement and I apologize that I had to step 
out.
    I guess the first thing is I am just confused by who is the 
employer and who is the employee here, because ordinarily there 
should be a grievance process, as Mr. Conyers was saying, that 
would allow the employee, through the union, to get some 
redress pretty quickly on a termination, I would expect, under 
a contract.
    So who is the employer?
    Mr. Hamberger. The employer is the contractor who has a 
contract to perform duties for the railroad.
    We have a privity of contract with that company and 
heretofore, the right of appeal was communicated to the 
contractor to say, ``One of your employees has been denied 
access to a rail yard,'' and the contractor either did or did 
not and, unfortunately, in many cases, apparently did not 
convey that right of appeal to the individual employee.
    That is something that we have corrected today and we will 
make sure that the employee does not have to rely upon the 
contractor to come forward, that he or she has that right 
individually.
    And, again, the appeal would be to the right of access, not 
on an employment basis. The appeal would be, ``You have denied 
me access to your rail yard based on your background check. Let 
me explain to you the mitigating circumstances or maybe you 
have the name wrong, a misidentification,'' or whatever other 
mitigating circumstances might come forward.
    Mr. Perlmutter. So they are appealing that to now the 
railroad company?
    Mr. Hamberger. It would go through the company that the 
railroads have hired, the e-RAILSAFE is the program, but then 
through them to the railroads, yes, sir, and the railroads, for 
the most part, have indicated that that would be not just the 
security person on the appeal, but also a human resources 
person, a lawyer, and taking a look to make sure that the 
appeal is dealt with properly.
    Mr. Perlmutter. Is there an appeal from that?
    Mr. Hamberger. No.
    Mr. Perlmutter. So there is no sort of neutral--the 
railroad company is considered to be the neutral arbiter here.
    Mr. Hamberger. Well, at this point, sir, it is indeed a 
decision of a private company, much like any company around the 
economy, as to who to hire and who to allow on their property, 
but there is the TWIC that--
    Mr. Perlmutter. My experience is not that way. Ultimately, 
there is somebody who comes in either as the administrative law 
judge or a neutral referee ultimately between the union bring a 
grievance and the employer defending its action.
    So as I read this stuff, I was just confused, because it 
didn't sort of agree to anything that I understand.
    And I guess my question to you and to the unions is, is 
that what your contract says?
    Mr. Marinez. The contract with us and the vendor, of 
course, we file the grievance on behalf of the member, whoever 
was pulled out of service. It is always thrown back, ``It 
wasn't us, it was e-RAIL.''
    I call e-RAIL, which I have been in touch with John 
Holbert--
    Mr. Perlmutter. So you are getting a shell game, kind of 
back and forth, and I don't mean that in a--you know, 
everybody's got to try to look out for their interest.
    At the end of the day, we have got to look out for security 
for this nation, but we don't want to have things that allow 
somebody to dismiss a bunch of folks, get them caught up in a 
terrible bureaucracy based on homeland security.
    So I appreciate the chairwoman's willingness to have kind 
of a log of where this is happening. I would like to see just a 
standard labor-employer kind of a system, where somebody can go 
and get a fair hearing by a neutral judge.
    Mr. Willis. Well, you raise one of the key problems with 
the current appeals process and even now as modified.
    When the TWIC program was proposed for maritime, one of the 
major deficiencies that we identified, that there wasn't this 
independent entity, whether it was an ALJ or what have you, 
deciding appeals, it went back to TSA, we expressed a lot of 
concern about that and this committee and others in Congress 
reacted by changing the law slightly and providing for an 
administrative law judge to hear those appeals and to hear 
those waivers.
    We think something like that needs to be a component of 
this program.
    Mr. Perlmutter. And I guess I am not saying to the railroad 
side, to the contractor side, that you might have other crimes 
that go beyond homeland security issues. I am not objecting to 
that, but that should be part of the deal in the first place, 
especially whether it is a new applicant or somebody who has 
been working for you and then there ought to be a neutral 
arbiter.
    That is just sort of my picture of the way it works.
    Mr. Hamberger. Well, clearly, for those people who are 
employees, that is the way it works of the railroad itself and 
it is sort of an interesting dichotomy that this is not a 
requirement.
    So I am not sure how the TWIC process would work to a 
program that is not a requirement. If there were a TWIC program 
for the railroad workers, I am sure that that would then be a 
government sanctioned certification and then there would be an 
appropriate ALJ role.
    Here, this is a private sector background voluntary 
program, and so we are doing the best we can in applying that 
appeals process and we think we do it fairly and that is 
certainly the goal.
    Mr. Perlmutter. Thanks, Madam Chair.
    Ms. Jackson Lee. I thank the gentleman.
    We are about to conclude this hearing and I wanted to pose 
a suggested strategy for going forward and, as well, to try and 
get the parties at hand to see if we could cooperate.
    First, I think it is important to note that Secretary 
Chertoff has rendered a position based upon the meeting of the 
Department of Homeland Security with the members of this 
committee and to also note that there have been meetings with 
the Transportation Committee, Judiciary Committee and Homeland 
Security Committee, that several of the victims or impacted 
persons have been in, including railroad representatives, as 
you well know, Mr. Hamberger, and I think that we have the 
makings of moving forward.
    Let me just cite the language that was issued February 12, 
after our meeting seeking clarification from Secretary 
Chertoff. ``The industry should consider establishing a 
vigorous internal redress process for adversely affected 
applicants and personnel, including an appeal and waiver 
process similar to the system established for HAZMAT drivers 
and transportation workers at ports.''
    Now, it says ``similar to,'' but it does not say that it 
has to be completely in synch. And so I raise these issues and 
concerns with you, Mr. Hamberger, and I think you did make it.
    First of all, we see that notice is important and I am very 
disturbed with the story that Mr. Marinez has about the mother 
of four that had an identity issue, but it took 6 weeks.
    I imagine in 6 weeks she could have lost her home, she 
could have been evicted out of an apartment, and certainly 
could have been left in dire straits. So I think timeliness is 
crucial.
    My question to you is, as you go back after this hearing, 
can we count on this process to include a more timely notice? 
This is out of the railroad and we know you are dealing with 
contractors.
    And I am going to be looking to see how far our reach is on 
contractors, because contractors can always have a dear ear or 
have a different pathway. And I understand Mr. Marinez seems to 
suggest that contractors want to do right, but they are being 
directed by the rail.
    So let's try to see if we can all communicate. And I am 
disturbed that people are so negatively impacted.
    And I might say that Congresswoman Brown is correct of the 
disparate impact and particularly, though we see that our 
representatives here from those who have been impacted, are 
diverse, we know that there is a heavy impetus or heavy impact 
on, in many instances, Hispanics and African-Americans and 
hardworking Caucasians, if you will, who are working every day, 
from a certain economic level, that they are the ones that are 
impacted negatively.
    That is not doing this country any good and it certainly 
does not thwart our commitment to homeland security.
    So can you commit here today--I am looking at this process, 
but I am also reading the word ``vigorous''--to timely notice? 
Your contractors then can give timely notice. Can you commit to 
a timeliness that would certainly not be in the category of 6 
weeks?
    I think you said some companies are talking about 5 days. I 
think that is really responsible and I would like to see that 
be the rule or the goal of the industry.
    So I have asked three questions and I guess the last one 
is, looking and listening to Mr. Willis and Mr. Marinez, the 
opportunity for the industry to look at diversifying its panel, 
because what I sense is that the panel is representative only 
of the industry and I wonder whether or not there is that 
opportunity, again, keeping in line with the responsibilities 
of homeland security and safety, which is what your concern is.
    Mr. Hamberger?
    Mr. Hamberger. In keeping with the fact that we need to 
wrap this up, I will just say yes, yes, and we will take a look 
at it.
    Yes, we will have a commitment on a timeline for prompt 
notification that access has been denied. Yes, we will have an 
industry standard on a timely decision on that appeal. And I 
will make no commitment with respect to broadening the appeal 
board, but we will, based on your direction here today, 
certainly go back and take a look at it.
    Ms. Jackson Lee. That I think the committee would 
appreciate.
    And Mr. Lungren started out this committee by saying that 
this is a bipartisan issue. He was called to the floor. So I 
offer his regrets to you.
    We wanted to make sure that you understood that we are 
trying to work effectively on safety and security in the joint 
jurisdiction that we have.
    Mr. Conyers' committee jurisdiction, of course, deals with 
the civil liberties, civil rights and due process that these 
workers have.
    And let me just, as I make this inquiry, because, Mr. 
Marinez, you represent the workers, I believe, that are here in 
the room today.
    Mr. Marinez. No, Congresswoman.
    Ms. Jackson Lee. Who represents those?
    Mr. Marinez. One of the other locals.
    Ms. Jackson Lee. Do you know the other local?
    Mr. Marinez. Just met them today.
    Ms. Jackson Lee. Does anyone know the other local, 710? Is 
that out of Teamsters? Yes.
    Then, Mr. Marinez, let me just recount for you, you 
mentioned the individual that had an identity problem and could 
have gotten that straightened out in a short period of time.
    Would it disturb you to note that an individual has 
finished their probation in 2000 and now they are still on the 
crosshairs of being terminated? Would that disturb you?
    Mr. Marinez. Yes, it does.
    Ms. Jackson Lee. Mr. Willis, would that disturb you?
    Mr. Willis. Absolutely.
    Ms. Jackson Lee. And let me be very clear, this is Mr. 
Yicardi and his offense is not a crime of violence.
    Would it disturb you if a gentleman has not a crime of 
violence and he seems to have been released out of his crime in 
2000 and he is still terminated, Mr. Shed?
    Mr. Willis?
    Mr. Willis. Yes.
    Ms. Jackson Lee. Would you have a solution for that that we 
have not offered here that does not counter homeland security?
    Mr. Willis. Well, again, we think there is a process to do 
these checks in the right way and if you have it stated what 
the crimes are, how far back you are going to look, you have a 
robust appeals and waiver, with an independent entity looking 
at these cases, I think you are going to address?you are not 
going to address all of them, but you are going to address a 
lot more than what is currently the case under this program.
    Ms. Jackson Lee. So we need to possibly give instruction or 
guidance or counsel with the railroads to look at a vigorous 
appeal process that might have an opening or a diverse panel or 
a process that individuals who seemingly their background has 
been cleared since 2000 would be able to have their grievances 
addressed.
    Mr. Willis. I think that is correct, and even offenses that 
are more recent. If they can demonstrate that they are not a 
security risk, just like TSA does for TWIC and HAZMAT, they 
should be able to go to work.
    Ms. Jackson Lee. Mr. Jamison, anything that we have said 
here that counters the regulations or the CFRs that TSA has 
sent out?
    Mr. Jamison. Not to my knowledge. Again, there is no CFR 
particularly pertaining to this process, but the recommendation 
of the TWIC and the HAZMAT process, I am not sure, but I don't 
think so.
    Ms. Jackson Lee. I think what we wanted to clarify today is 
to find a pathway of resolve for many of the workers who have 
been impacted negatively and to clarify between contractors and 
railroads and unions and workers a pathway of providing these 
individuals with an opportunity for work and an opportunity for 
their career, an opportunity for their professional 
development, if you would.
    And I think that the record has been made enormously 
clearer. I hope with the information that we will receive, as 
requested by Mr. Conyers, the commitment, Mr. Hamberger, that 
you have made on notice and timeliness and, also, to review the 
panel, which I think is crucial, should put us in steps going 
forward.
    Let me ask my last question of you, Mr. Hamberger. We have 
mentioned substance abuse and availability of substance abuse 
being issues that would require treatment or consultation.
    Do you still maintain that, on the record, that some of 
those issues may lend themselves more to counseling, 
particularly if they have not engaged in any criminal act in 
that instance?
    Mr. Hamberger. I think what we discussed when we met 
yesterday was the fact that the railroads, under Operation 
Redblock, have a very vigorous program of counseling and 
assistance for their employees.
    We have a zero tolerance drug policy that is actually from 
the Department of Transportation, and so it is an effort of the 
industry to help the employees not just in drug abuse, but 
alcoholism and other social issues that we do for our 
employees.
    We do not offer that to the employees of our contractors 
and I would not assume that we would. That is an employee of 
the railroad issue and not for the employees of our 
contractors.
    Ms. Jackson Lee. Well, Mr. Hamberger, we realize the sort 
of good working relationship that you have with your contactors 
and the desire of the contractors to be particularly 
accommodating to the railroads and we hope that you will be 
able to encourage them to follow suit on some of the good plans 
that you have.
    I will conclude by making this final comment, and that is 
that, the four witnesses, your testimony has been welcomed. If 
there are additional statements that you desire, we welcome 
them to be added into the record.
    We would also say to members if there are additional 
questions that you would have for the particular witnesses, we 
would welcome them into the record.
    And I would like to put on the record that Mr. Yicardi--am 
I pronouncing the name correctly? Mr. Yicardi and Mr. Shed are 
two still unemployed individuals that represent a sample of 
those who have been terminated.
    Their facts seem to suggest, based upon what we have heard 
today, that there is no reason for them to still be unemployed. 
I hope that those who are engaged in this process will move 
expeditiously to provide a report to this committee and to this 
chairperson on the status of these two individuals and the 
status of their reemployment.
    With that, I would like to thank the witnesses for their 
valuable testimony and the members for their questions.
    The members of the subcommittee may have additional 
questions for the witnesses, as I have said. We will ask you to 
respond expeditiously in writing to those questions and I ask 
the witnesses to respond to me for the inquiries that I have 
made, including my specific inquiry made on behalf of Mr. Shed 
and Mr. Yicardi with respect to their employment status, as 
quickly as possible.
    Hearing no further business, the subcommittee now stands 
adjourned.
    [Whereupon, at 12:46 p.m., the subcommittee was adjourned.]

                                 
