TESTIMONY OF PETER PEYTON

 

ON BEHALF OF 60,000 MEMBERS OF

 

INTERNATIONAL LONGSHORE AND WAREHOUSE UNION

 

 

BEFORE THE

 

COAST GUARD & MARITIME TRANSPORTATION SUBCOMMITTEE

 

TRANSPORTATION AND INFRASTRUCTURE COMMITTEE

 

UNITED STATES HOUSE OF REPRESENTATIVES

 

HEARING ON SECURITY CREDENTIALS FOR PORT PERSONNEL

 

FEBRUARY 13, 2002

 

 

 

 

 

My name is Peter Peyton.  I live and work in the adjoining ports of Los Angeles and Long Beach California, which together constitute far and away the largest, commercial seaport area in the United States.  I am equally proud to be an active member of the International Longshore and Warehouse Union (known as the “ILWU”), which since 1934 has been chosen by the thousands of West Coast port and dock workers to represent us in all matters related to our employment.  Our union, the ILWU, presently represents about 60,000 working men and women, not just in the longshore and maritime industry, but also in warehouse, hotel-restaurant, health care, mining, office clerical and a variety of other industries in California, Oregon, Washington, Alaska, Hawaii and Canada. 

 

ILWU members are proud to have the most democratic, rank-and-file controlled union in the United States and perhaps in the World.  This, of course, is not by luck or accident.  Union democracy, just like state democracy, requires hard work and the active, persistent and informed involvement of the members and citizens being served. 

 

So it should not surprise you to learn that I am not an elected official of the ILWU, though I did serve one year as Vice-President of the Marine Clerks local in Los Angeles/Long Beach.  On my first day as Vice-President, I called for a work stoppage because flammable liquids were being stored beside hazardous chemicals, and hazardous materials were being loaded improperly and I felt that practice jeopardized the safety and security of the workplace and the surrounding community.

 

 Like many ILWU members, I volunteer to serve on various rank-and-file committees, which help develop the policies and positions of the ILWU.  Presently, I serve on a five member committee called the “ILWU Coast Legislative Action Committee”.  While we deal with all types of legislative matters affecting the longshore industry, our Committee has devoted most of its attention to seaport security issues, in general, and S. 1214, the Port and Maritime Security Act of 2001, in particular, long before the terrible events of September 11.

 

Before going further, I want to thank the Chairman and the entire Subcommittee for the opportunity to share with you the views of American port and dock workers concerning port security.  For us, port security is not just one among many issues on the post 9-11 American agenda.  For us, port security is a matter by which we, our families and our port communities live and possibly may die every single day.  If you can imagine unloading thousands of containers, each filled with unknown items packed by unknown people at any and all locations throughout the world, and virtually none of these containers or ships go through any security screening before you, the longshoreman, work the ship, then you can begin to appreciate the risks and fears we face every day and understand why port security is our absolute, top concern.  Working these foreign flag ships is like boarding an airplane, owned, operated and crewed by foreign nationals, a plane loaded with luggage from countless places  and the luggage, for the most part, has never, ever been inspected!  And all the time you wonder, will it explode? Am I being exposed to some poison or bio-weapon infecting not just me but my family, friends and neighbors?  Think on that and then you can really see how vital this issue is for us.  We hope you know that the members of the ILWU are committed to making our ports and surrounding areas safe, secure, and free of criminal or terrorist activities.  It is a simple matter of survival for us.

 

And we hope you can also appreciate that our views on port security are formed by actual, hands-on experience.  We know better than just about anyone how ports and commercial docks operate and what are real, and what are imagined security problems.

It is in this context that we present our views today and urge that Congress amend S. 1214 to provide for effective, not cosmetic, security measures to protect our ports and port workers.

 

The basic problem with S. 1214 is that it places unwarranted suspicion and burdens on American port workers by requiring criminal background checks – checks that lack adequate due process and confidentiality protections – while providing completely inadequate measures for the inspection and screening of foreign ships, foreign crew and foreign cargo.  Going back to the airplane analogy because that is something everyone in this room knows by personal experience, S. 1214 gives us whatever security and comfort you can find in having our planes handled and operated by screened workers and yet loaded with uninspected baggage.  S. 1214, as currently written, gives us this type of so-called “security” for our ports.  It gives us phoney rather than real port security.  And it does so at the expense of American workers.

 

American port workers are not the enemy or the problem.  After the unspeakable terrorist crimes at the World Trade Center and the Pentagon, longshore workers have worked cooperatively with the Coast Guard and law enforcement to heighten security and to contribute to the effort to secure our ports and surrounding communities from these threats.  This response, of course, is nothing new.  ILWU members have always done more than their part in providing our country with highly productive and secure commercial ports in times of war and national crisis.

 

It is absolutely contrary to the facts and to the goal of maintaining secure seaports to treat longshore workers as security risks.  Longshore workers are the front-line defense to terrorism in our ports and a critical part of the solution for keeping our ports safe and secure.  It is the well-established longshore workforce that knows how things work best in the ports and, perhaps most importantly, knows who belongs where in the marine terminals. It is ILWU members who are best able to detect and report suspicious and unusual activity in the ports.  The government should, therefore, enlist these dedicated workers as partners rather than as suspects in the efforts to secure our nations ports.  

 

It is equally critical that the government not respond to the new terrorism against our country in ways that harm the productivity of our commercial seaports.  Excessive or imprudent regulations that fail to account for the true realities of port operations will only result in further damage to the national and world economies, at a time when they are in perilous circumstances.  We must not, through rash government regulation, accomplish the very result our enemies seek and we are trying to avoid – the disabling of waterfront commerce and elimination of our civil liberties. Rather, the ILWU urges Congress and the Department of Transportation to devote needed funding for the development of port infrastructure to remedy port congestion.  In this regard, security measures, in order to be truly effective and affordable, must be linked and developed with plans to improve port infrastructure and to relieve port congestion.

 

As a general matter of policy, the ILWU membership opposes background checks on any workers.  During the investigation of the Interagency Commission on Seaport Security (the Graham Commission) the ILWU challenged the Commission to prove their assertion that internal conspiracies are a problem at many of our nation’s ports.  We asked them for an example of an internal conspiracy to commit crimes involving ILWU longshore workers.  They could not produce one example of ILWU workers at our nation’s ports involved in criminal conspiracies.  Not one.   In fact, the only involvement our members have with serious criminal activity is reporting to authorities suspicious activities and cargo.  In previous testimony before the Senate Commerce, Science and Transportation Committee, we pointed out that the actions of one longshore worker at the Port of Tacoma led to the largest cocaine seizure in the Port’s history.

 

The ILWU and its members, therefore, believe that background checks on incumbent longshoremen, who have proved their reliability as productive workers, is misguided.  It should be self-evident that any disqualification or denial of waterfront employment would wrongly impose unfair penalties on the very people who have served the maritime industry and who face the greatest personal and financial risks should terrorism strike U.S ports.  In addition, disqualifying incumbent workers from their jobs, which they have successfully performed safely and securely, based on past crimes for which they have already received the legally appropriate penalties, would violate constitutional protections, including due process and the prohibitions against double jeopardy and ex post facto laws.

 

In Coast Guard workshops and other meetings, the industry has advocated for biometric credentials.  The current Pacific Maritime Association card is biometric because it includes a photograph of the worker.  The ILWU longshore caucus met last month and moved to require that every longshore worker carry this card and that the card be authenticated by a foreman prior to entering a marine facility.  We do not feel the need to require that additional cards or credentials be issued to the majority of our longshore workers except for those workers who would be required to undergo background checks and security clearances .  Unfortunately, we are convinced by their own statements that our employer would like to use a biometric card for purposes other than security. 

 

The union took the step of meeting with the employers representatives, the Pacific Maritime Association, to discuss ways that management and labor could help beef up security.  No commitments to enhance security were made by the employers.  In fact, the union never received a response to the attached proposal.

 

Recognizing the strong push for background checks from various sources, we urge Congress to ensure that S. 1214 absolutely mandates certain due process and confidentiality protections and limits background checks just to those persons with security-sensitive positions.  The ILWU believes that legislation introduced by Representative Corrine Brown (D-FL) wisely places limits on background checks.   We also make a plea for the addition of several other provisions, such as increased inspection of containers and vessels, which are absolutely necessary for true, effective port and national security.  We urge that the following be considered and adopted:

 

1)                  Experienced longshore workers should not be subjected to intrusive background checks.  Workers with established seniority pose little, if any, risk to port security.  These tenured workers have demonstrated their commitment to the safe and productive operation of their port. 

 

2)                  At a minimum, any government background checks of port workers must be carefully tailored to accomplish the objective of promoting national and port security against terrorism.  Accordingly, no worker with a past “criminal record” should be removed from any position, absent a determination, based on sufficient evidence that the individual actually poses a security risk with respect to potential terrorism.  After all, the point of any background check is not to add new penalties for past offenses but to identify individuals who may presently pose a security risk.

 

3)                  Any port worker subject to disqualification or to any limitation affecting employment must be given the right to a meaningful appeal.  While S. 1214 mentions an appeal process, it does not specify the criteria and procedures to be used.  Some have argued that under the current appeal provision, the only issue for review would be whether the criminal record check is accurate.  This is hardly a meaningful appeal process.  The provision must be clarified to ensure that the appeal review focuses on whether the individual, based on all relevant circumstances, poses a threat to port security

 

4)                  Although S. 1214 strongly suggests that criminal background checks and any resulting disqualification are limited to security-sensitive positions, additional language should be inserted to ensure that this is the case.

 

5)                  The confidentiality provisions in S. 1214 are inadequate.  Given the nature and massive scope of conducting background checks on hundreds of thousands, if not millions, of people, the risk of improper disclosure and abuse in violation of privacy and other rights looms large.  The Senate Bill would allow FBI and other government reports on individuals to be shared with their employers and here is where confidentiality begins to be compromised.  The best way to ensure confidentiality is to limit the information given to employers and private parties.  The bill should require that only the results of a check, specifically whether an individual passed or failed the background check, should be shared with the employer.  At the same time, however, the individual should be entitled to a copy of all information used in his background check, especially for purposes of a meaningful appeal.

 

6)                  Any employment security check program should apply not just to port workers, but to all individuals, no matter their status, title or rank in any company, who have access to secure areas in port facilities or access to cargo manifests.  This would include, managers and executives in the maritime industry as well as truck drivers and vessel crew members.  It is equally important for port security that all individuals, no matter their physical location, who have free access to cargo and ship manifests, be subject to the same background checks as port workers.  It would be a major breach to the integrity of any background check program, if the thousands of employees located in offices outside port areas were excluded from such a program where they have the same, and often greater, access to manifests than do port workers.

 

7)                  Many security measures depend, in large part, on the definition of “security-sensitive positions” and “secured areas”.  The findings in section 101 of the Senate Bill correctly note that security must necessarily be tailored to reflect the unique realities of each port and each port facility.  So while the bill wisely does not define “security-sensitive positions” and “secured areas”, it should be amended to specify that such terms be defined and applied by the Local Port Security Committees.  It is these local committees, created in section 104 of the bill, that have the expertise and knowledge to best determine what areas and jobs need to be treated as security-sensitive.

 

8)                  As for who will serve on the Local Port Security Committees and the National Committee, we urge that the initial language in prior versions of the bill be restored to require, not just permit, that membership include representatives from private sector maritime businesses and labor organizations.  Effective security measures can only be developed and implemented with the active involvement of the industries and people who are most familiar with port operations and responsible for the implementation of such measures

.

9)                  The containers on vessels and in port facilities need to be subject to some type of security screening to protect U.S. seaports and international maritime commerce.  Obviously, it is both impractical and cost-prohibitive to inspect every one of the tens of thousands of containers that flow in and out of our ports each day.  As an effective and fairly inexpensive alternative, the proposed legislation should at least mandate that port workers who receive containers inspect the integrity of the outside seal on each container, including supposedly empty containers.  A broken seal would alert the port facility that the container has been tampered and that it needs to be carefully inspected before entering a facility or being placed on a vessel.  A systematic check of container seals also provides authorities with a record as to the parties responsible for placing the seal on any container that may be the means of a terrorist act.

10)              Another equally necessary security measure is the mandatory inspection of so-called “empty containers”, which regularly move on and off ships each day.  Many countries, including Japan, require such inspections because of the increased risk that these “empties” pose for the placement of bombs, weapons and contraband.  In fact, inspection of empty containers on American docks was the customary practice up until a few years ago when companies decided it cut into profits.

 

11)              Again, while we recognize the impracticality of inspecting every container, the legislation should at least require that cargo be fully documented and subject to on site inspection, at random, and whenever there is probable cause at the marine terminal before allowed entry.  Clearly, enhanced random and for cause inspections would provide immeasurable deterrence against terrorism.

 

12)              Legislation should require that trucks pick up and deliver cargo to secure “staging areas” at the entrance of each marine terminal to protect the terminal and the vessels from terrorist attack.

 

13)              The legislation should require security clearance requirements for all vessels, their owners, operators and crew before being allowed to enter a U.S. port.  Presently, these vessels operate under secrecy and without regulations by the scheme of flying the flag of a country that lacks any meaningful regulations and scrutiny.  The London Times has reported that the terrorist group,  Al Queda, presently operates dozens of these flags of convenience vessels.  This is made possible by the absence of meaningful regulation and accountability of flags of convenience vessels.

 

14)              The legislation should require that cargo be fully documented and subject to on site inspection, for cause or at random, at the marine terminal before allowed entry.

 

15)              It is essential that the proposed legislation be amended to specify that its provisions may not be used in the context of any labor dispute.  Legislation addressing security concerns should not and must not be cynically used as a means to alter established federal law concerning labor-management disputes.

 

I appreciate the opportunity to submit comments for the record on behalf of the ILWU and our members.  Let me end by saying once more that it is our deepest wish to work with Congress, the U.S. Coast Guard and our employers to make sure our nation’s ports are safe and secure from terrorism as reasonably possible.  I am prepared to answer any questions from Committee members.

 

 

Attachment

 

ILWU PROPOSAL FOR SPECIAL CLRC MINUTES

                                                  RE WATERFRONT SECURITY

 

                                                              September 20, 2001

 

The CLRC met to begin assessing waterfront security issues in light of the terrorist attacks inflicted on the United States on September 11, 2001.  The Coast Parties condemn these terrorist acts and will not be deterred from performing the work that is so vital to the nation’s interest.  Accordingly, the CLRC agreed to the following:

 

1)                  The Union and the Employers pledge to work together to assess the safety of waterfront personnel and the security of operations covered by the PCL&CA with respect to the threat of terrorist attacks.

 

2)                  The Union and the Employers, through the CLRC, will jointly develop any programs and initiatives that they deem appropriate in response to the threat of terrorist attacks affecting waterfront personnel and operations covered by the PCL&CA.

 

3)                  The Employers will promptly notify the Union of any developments and initiatives, including any actual or proposed government mandates, that could affect waterfront security or operations covered by the PCL&CA.

 

4)                  The CLRC will have Waterfront Security as a standing item of its regular meetings= agenda until such time as it deems appropriate.

 

5)                  The CLRC instructs all Joint Port Labor Relations Committee to review Waterfront Security as a standing item of their regular meeting’s agenda and to report promptly to the CLRC any problems or proposals for its review and action.

 

The CLRC agreed to send copies of these minutes to all JPLRCs by facsimile today