[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/
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__________
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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.]