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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 

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


Congress.#13
COMMITTEE ON HOMELAND SECURITY 

BENNIE G. THOMPSON, Mississippi, Chairman 

LORETTA SANCHEZ, California, 

EDWARD J. MARKEY, Massachusetts 

NORMAN D. DICKS, Washington 

JANE HARMAN, California 

PETER A. DEFAZIO, Oregon 

NITA M. LOWEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

DONNA M. CHRISTENSEN, U.S. Virgin 

Islands 

BOB ETHERIDGE, North Carolina 

JAMES R. LANGEVIN, Rhode Island 

HENRY CUELLAR, Texas 

CHRISTOPHER P. CARNEY, Pennsylvania 

YVETTE D. CLARKE, New York 

AL GREEN, Texas 

ED PERLMUTTER, Colorado 

VACANCY 

PETER T. KING, New York 

LAMAR SMITH, Texas 

CHRISTOPHER SHAYS, Connecticut 

MARK E. SOUDER, Indiana 

TOM DAVIS, Virginia 

DANIEL E. LUNGREN, California 

MIKE ROGERS, Alabama 

BOBBY JINDAL, Louisiana 

DAVID G. REICHERT, Washington 

MICHAEL T. MCCAUL, Texas 

CHARLES W. DENT, Pennsylvania 

GINNY BROWN-WAITE, Florida 

MARSHA BLACKBURN, Tennessee 

GUS M. BILIRAKIS, Florida 

DAVID DAVIS, Tennessee 

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 

PETER A. DEFAZIO, Oregon 

ELEANOR HOLMES NORTON, District of 

Columbia 

YVETTE D. CLARKE, New York 

ED PERLMUTTER, Colorado 

BENNIE G. THOMPSON, Mississippi (Ex 

Officio) 

DANIEL E. LUNGREN, California 

GINNY BROWN-WAITE, Florida 

MARSHA BLACKBURN, Tennessee 

GUS M. BILIRAKIS, Florida 

PETER T. KING, New York (Ex Officio) 

D. MICHAEL STROUD, Director & Counsel 

NATALIE NIXON, Deputy Chief Clerk 

COLEY O’BRIEN, Minority Senior Counsel 

(II) 

(III) 

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 

(1) 

THE IMPACT OF BACKGROUND AND 

SECURITY CLEARANCES ON THE 

TRANSPORTATION WORKFORCE 

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. 

2 

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 fiance ́e’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 threefold: 

(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 ConVerDate Nov 24 2008 10:22 May 21, 2009 Jkt 000000 PO 00000 Frm 00006 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-9\35268.TXT HSEC PsN: DIANE
3 

gress 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. EleaVerDate Nov 24 2008 10:22 May 21, 2009 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-9\35268.TXT HSEC PsN: DIANE
4 

nor 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 eleVerDate Nov 24 2008 10:22 May 21, 2009 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-9\35268.TXT HSEC PsN: DIANE
5 

ments 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. 

6 

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. 

7 

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. 

8 

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 guidVerDate Nov 24 2008 10:22 May 21, 2009 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-9\35268.TXT HSEC PsN: DIANE
9 

ance 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. 

10 

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 eRAILSAFE 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. 

11 

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 eRAILSAFE 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:] 

12 

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. 

13 

• 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 eRailSafe ‘‘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. 

14 

Railroad police are examining the disqualifiers used by individual railroads under 

the e-RailSafe program. However, railroads believe that disqualifiers under the eRailSafe 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 terrorismrelated 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 eRailSafe. 

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 eRailSafe 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. 

15 

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. 


11009-1.eps
16 

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 eRAILSAFE 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 

17 

1 A complete list of TTD’s member unions is attached. 

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. 

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 

18 

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? 

19 

2See e-RAILSAFE web site at http://www.e-railsafe.com/help/rsFAQ.htnl. 

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. 

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 eRAILSAFE 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. 

20 

ATTACHMENT 1: TTD MEMBER UNIONS 


11009-2.eps
21 

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. 


11009-3.eps
22 

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? 

23 

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. 

24 

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 impleVerDate Nov 24 2008 10:22 May 21, 2009 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-9\35268.TXT HSEC PsN: DIANE
25 

ments 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 supVerDate Nov 24 2008 10:22 May 21, 2009 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6621 H:\DOCS\110-HRGS\110-9\35268.TXT HSEC PsN: DIANE
26 

port 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 

27 

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 

28 

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). 

29 

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. 

30 

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. 

31 

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? 

32 

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. 

33 

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. 

34 

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. 

35 

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 

36 

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 eRAILSAFE. 

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. 

37 

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. 

38 

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. 

39 

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 

40 

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 eRAILSAFE 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 

41 

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. 

42 

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. 

43 

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 

44 

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. 

45 

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 CauVerDate Nov 24 2008 10:22 May 21, 2009 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6601 H:\DOCS\110-HRGS\110-9\35268.TXT HSEC PsN: DIANE
46 

casians, 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? 

47 

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. 

48 

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.] 

49 

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