Maersk Line, Limited Receives OSHA Beat-Down! Shipping Company Must Pay Over $700,000 for Retaliating Against Chief Mate Whistleblower
FULL PDF OF OSHA’S WHISTLEBLOWER INVESTIGATION
U.S. DEPARTMENT OF LABOR
www.whistleblowers.gov
July 14, 2023
Jane Jacobs, Esq
Tarter Krinsky & Drogin LLP
Re: Maersk Line Limited
Dear Ms. Jacobs:
This is to advise you that we have completed our investigation of the above-referenced complaint filed by [REDACTED] (Complainant) against Maersk Line Limited (Respondent) on June 22, 2021, under the Seaman’s Protection Act, 46 U.S.C. § 2114 (SPA). In brief, alleged Respondent suspended and then terminated his employment in retaliation for reporting unsafe conditions and contacting the U.S. Coast Guard (USCG).
Following an investigation by a duly authorized investigator, the Acting Secretary of Labor, acting through her agent, the Regional Administrator for the Occupational Safety and Health Administration (OSHA), Region VI, finds that there is reasonable cause to believe that Respondent violated SPA and issues the following findings:
Secretary’s Findings
Timeliness of complaint:
Respondent suspended Complainant on December 29, 2020, and subsequently discharged him on March 12, 2021. On June 22, 2021, Complainant filed a complaint with the Secretary of Labor alleging the Respondent retaliated against him in violation of SPA. As this complaint was filed within 180 days of the alleged adverse actions, it is timely.
Coverage:
SPA protects a seaman from retaliation for activity set forth in the statute. A seaman is any person employed or engaged in any capacity aboard a U.S. flag vessel or any other vessel owned by a citizen of the United States. See 29 CFR 1986.101(d). Complainant served as chief mate and acted as a relief captain on board a vessel that transported goods. The vessel, then named Safmarine Mafadi, was a U.S. flag vessel. Maersk Line Limited employed Complainant as a chief mate since July 2010. Complainant’s duties routinely consisted of supervising, training, and coordinating activities of the deck force, and he was responsible for assisting with the vessel's piloting, navigation, safety, security, first aid, cleanliness, and small boat operations.
Findings of the investigation:
Complainant’s protected activities were a contributing factor in his suspension and the subsequent termination of his employment.
Complainant engaged in numerous protected activities including the following:
On September 19, 2019, Complainant participated in the American Bureau of Shipping (ABS) inspection.
In early December 2020, Complainant participated in an ABS inspection on the vessel and reported to the surveyor that there was a leak and that other repairs were needed to the cargo hold bilge system.
On December 23, 2020, Complainant was given a letter of warning by Captain [REDACTED]
for failure to properly maintain the log as per his standing orders and not following his night orders for December 12, 2020. Complainant sent an email to DPA [REDACTED] disputing these allegations and claiming this was retaliation for reporting alcohol consumption on board the vessel.On December 24, 2020, Complainant complained to Captain [REDACTED] about the alcohol use on board the vessel by [REDACTED] and seven crew members.
On December 29, 2020, Complainant filed a complaint with the USCG reporting that the lifeboat block and releasing gear were inoperable, crew members were in possession of alcohol and drinking onboard, the emergency fire pump was not working, trainees were standing watch unsupervised, and the cargo hold bilge system needed repairs as it was causing flooding.
Complainant received both positive and negative performance feedback during his tenure. In 2019, Maersk issued to Complainant a Letter of Warning which was reduced to a Letter of Instruction and Performance Improvement Plan. Also, on December 23, 2020, Maersk issued Complainant a Letter of Warning, which he alleges was retaliatory. Between these two events, the ship’s leaders gave Complainant positive feedback and words of praise for his work. They specifically noted that he “has the knowledge, experience, and training to sail as a Captain.”
At 5:45 pm on December 29, 2020, the USCG boarded the vessel and conducted an inspection, in which Complainant participated. The USCG noted in their report a substantial leak in the fire main in the starboard tunnel, a cracked safety rail, and lifeboat blocks in need of replacement. The safety meeting minutes were logged, with no evidence of “gun decking.”2 Following the completion of the inspection, Captain [REDACTED]relieved Complainant of his duties, suspended him, and ordered him to leave the ship.
After not hearing from Respondent on the status of his return, on January 7, 2021, and February 19, 2021, Complainant sent an email to the DPA inquiring about his returning to work and outlined the deficiencies that the USCG had noted from their inspection, which he alleged were not properly reported by the captain of the vessel to Respondent prior to his complaints to the USCG.
On March 12, 2021, Respondent issued a termination letter to Complainant stating he was being discharged for poor performance because he violated the following company policies:
Violation - Reporting Statutory Equipment Defects Document ID: 09-04-01.900: [REDACTED] reported issues to Flag Administration (USCG) without discussing the issue(s) with the Ship Superintendent, Fleet Group, and the Marine Standards team.
Violation - Reporting of Other Incidents-Casualties Document ID: 09-01-107: [REDACTED] failed to submit an event of casualty, incident, or damage not covered by existing ‘other' reporting forms to the Technical Manager with Fleet Group, Marine Standards, and Risk Management in CC stating all relevant information.
Violation - MLL Designated Person Document (DPA) ID: 04-100.900: [REDACTED] failed to contact the DPA in case of safety/environmental concerns that are not solved via the normal communication lines.
Respondent’s written policy (hereinafter “Reporting Policy’) states:
Reporting to Flag [USCG] and Class shall only take place, after discussing the issue with the respective Ship Superintendent, Fleet Group, and the Marine Standards team.
Respondent’s Vice President of Labor Relations [REDACTED], admits that this Reporting Policy requires seamen to report safety concerns to the company and allow it time to abate the conditions before reporting to the USCG or other regulatory agencies. Complainant was discharged for not following this policy. It is undisputed that Complainant’s complaint to the USCG was a contributing factor in his termination.
Respondent’s Defense
In defense of its Reporting Policy, Respondent first asserts its Reporting Policy that requires employees to report unsafe conditions internally before going to third parties, such as the USCG, is required by the International Safety Management Code (ISM), which has been codified through 33 CFR part 96.3 ISM 9.1 states the Safety Management System (SMS) should include procedures ensuring that non-conformities, accidents, and hazardous situations are reported to the company, investigated, and analyzed with the objective of improving safety and pollution prevention.
Second, Respondent argues the USCG has reporting thresholds in 46 CFR 4.05-1, citing that reporting is required by the Master or corporate management and is required only for very serious issues and only “after addressing the resulting safety concerns”. In other words, according to Respondent, even the USCG requires that a report be made internally first before reporting to the USCG. OSHA disagrees.
Respondent asserts that Complainant’s poor performance was part of the reason for his termination and relies on the Letter of Instruction issued on October 8, 2019, and the Letter of Warning issued on December 23, 2020.
Respondent asserts that the arbitrator’s decision issued on October 19, 2022, finding that Complainant’s complaint to the USCG was not in good faith, should be binding on the outcome of this investigation. In the alternative, Respondent asserts that the evidence, including the fact that the USCG allowed them to sail following the inspection, demonstrates that there were no safety issues on board and therefore Complainant’s complaint was not made in good faith. Again, OSHA disagrees; a seaman only needs to reasonably believe the information is true and relates to a violation of maritime safety.
Analysis and Conclusion
OSHA finds that Complainant engaged in the protected activities of reporting violations to the USCG and to its agent, the ABS. Based on the findings above, OSHA has reasonable cause to believe that Complainant’s protected activities were contributing factors in Respondent’s suspension and termination of Complainant and Respondent has not shown by clear and convincing evidence that it would have taken the same action in the absence of Complainant’s protected activities. Therefore, OSHA has reasonable cause to believe that Respondent violated 46 U.S.C. § 2114(a)(1)(A).
OSHA finds that while Maersk did issue corrective measures to Complainant, it also issued positive comments for his hard work and improvement. OSHA finds that these two incidents when taken in the context of his entire performance do not constitute clear and convincing evidence that Respondent would have terminated Complainant absent his protected activity of making his reports to the USCG and the ABS.
Accordingly, Complainant is entitled to relief under SPA. Complainant is entitled to preliminary reinstatement, back pay with interest and compensatory damages. 49 U.S.C. § 31105(b)(3)(A).
Respondent argues that, in response to the arbitration award, they made multiple offers of reinstatement to Complainant. However, OSHA finds that only two offers were made. Maersk made the first offer while Complainant was serving on another ship and could not abandon his post to return to Maersk on the dates requested. Complainant was clear that he could not begin work until March 21, 2023. The second offer was in violation of the collective bargaining agreement in that it would not have allowed him to take his required time off in between and was rejected by the union. Both offers were inappropriately conditioned on Complainant returning to work in the status of having “completely exhausted progressive discipline.” Accordingly, OSHA finds that for the purposes of this SPA complaint, the timeframes and disciplinary conditions imposed on the offers of reinstatement are unreasonable and therefore Respondent has not made a bona fide offer of reinstatement to Complainant.
OSHA finds that Complainant would have been promoted to Master (a.k.a., “Captain”) based on his performance appraisals and seniority. In November and December 2019, both Captain [REDACTED] and Captain [REDACTED] gave Complainant successful performance evaluations. Then on May 7, 2020, Complainant received an evaluation from Captain [REDACTED]which cited Complainant “has the knowledge, experience, and training to sail as a Captain.” On September 27, 2020, Complainant received another successful evaluation from Captain [REDACTED]. In addition, on October 16, 2020, VP of Labor Relations [REDACTED] advised Complainant, “We will definitely keep you in mind for any opportunities that might come up as a Master.” Complainant was also extended an unofficial offer via email to sail as a relief captain by the captain of another vessel because he thought his chief mate was not suitable to serve as a captain. Since then, that chief mate was promoted to the rank of captain by Respondent as of no later than December 6, 2022. Thus, OSHA finds that but for his illegal termination, Complainant would have been promoted to the rank of Captain, also known as Master, no later than December 6, 2022.
OSHA finds Complainant and his family have suffered tremendously because of Respondent’s illegal retaliation. Complainant was unemployed for three months and when he found work his salary was $70,454.00 less than what he earned working for Respondent. Complainant’s loss of pay resulted in significant financial and health struggles for Complainant. OSHA finds that Respondent’s illegal action has caused extreme hardship, financial stress, and suffering to Complainant and significant compensatory damages are appropriate.
OSHA also finds that Complainant’s termination could exacerbate the chilling effect already present from Respondent’s illegal policy. Accordingly, the Secretary must order Respondent to take affirmative action to abate the violation. 49 U.S.C. § 31105 (b)(3)(A)(i).
Relief under the SPA “may include punitive damages in an amount not to exceed $250,000.” 49 U.S.C. § 31105(b)(3)(C). The investigation revealed Respondent has a policy that requires employees to first report their concerns to the Respondent (and allow Respondent time to correct the condition) prior to reporting it to the USCG or other authorities. OSHA finds that this policy is repugnant to the Act and creates a chilling effect because it dissuades employees from reporting any safety concerns directly to the USCG or other federal, state, or local regulatory agencies. Respondent’s workforce is operating under this illegal policy that chills them from contacting the USCG or other authorities without contacting the company first. This policy is reprehensible and an egregious violation of the rights of employees. Accordingly, punitive damages are warranted.
PRELIMINARY ORDER
Upon receipt of this Secretary’s Finding and Preliminary Order, Respondent shall immediately reinstate Complainant. Such reinstatement shall include all rights, seniority, and benefits that Complainant would have enjoyed had he not been discharged. Such reinstatement is not stayed by an objection to this order.
Respondent shall promote Complainant to the position of Master, with his date of rank to be reflected as December 6, 2022.
Respondent shall pay Complainant back pay, minus interim earnings, in the amount of $372,597.07 as of July 14, 2023. Backpay will continue to accrue until Respondent makes a bona fide offer of reinstatement as set forth above.
Respondent shall pay interest on the back wages in the amount of $19,747.83, as of July 14, 2023, in accordance with 26 U.S.C. § 6621, and thereafter such interest until Respondent makes a bona fide offer of reinstatement as set forth above.
Respondent shall pay the employer portion of contributions to Complainant’s 401K plan from March 12, 2021, until Respondent makes Complainant a bona fide offer of reinstatement as set forth above.
Respondent shall pay the differential between the employer portion of contributions to his 401K plan reflecting Complainant’s promotion to Master from December 6, 2022, until Respondent makes Complainant a bona fide offer of reinstatement as set forth above.
Respondent shall submit appropriate documentation to the Social Security Administration allocating back pay to the appropriate calendar quarters.
Respondent shall pay Complainant pecuniary compensatory damages in the amount of $14,622.42, for the following:
Job-hunting expenses in the amount of $5,484.95.
Closing costs and fees associated with the refinancing of the family home in the amount of $8,993.72.
Complainant’s loan against his 401K retirement fund for which he suffered a $50 activation fee, and a $6.25 quarterly maintenance fee ($93.75 over the 60 months of the loan) making the total amount of fees $143.75.
Respondent shall pay interest on the pecuniary compensatory damages in the amount of $792.43 as of July 14, 2023, and thereafter until Respondent makes a bona fide offer of reinstatement as set forth above.
Respondent shall pay Complainant compensatory damages for pain and suffering, including financial hardship and mental distress in the amount of $50,000.
Respondent shall pay Complainant punitive damages in the amount of $250,000.
Respondent shall pay Complainant’s reasonable attorney’s fees.
Respondent shall expunge Complainant’s employment records of any reference to the exercise of his rights under the Seaman's Protection Act as amended by Section 611 of the Coast Guard Authorization Act of 2010, P.L. 111-281 (SPA), 46 U.S.C. § 2114.
Respondent shall not retaliate against Complainant in any manner for instituting or causing to be instituted any proceeding under or related to the Seaman's Protection Act as amended by Section 611 of the Coast Guard Authorization Act of 2010, P.L. 111- 281 (SPA), 46 U.S.C. § 2114.
Respondent shall take affirmative action to abate the violation by changing their reporting policy to state, while nothing in this order is meant to discourage seamen from reporting internally, Respondent will not prohibit employees from contacting the USCG or other federal, state, or local regulatory agencies directly without prior notice to Respondent. Respondent shall make this change on its internal website and e-mail the revised language to all its currently employed seamen.
Respondent shall post immediately in a conspicuous place in or about Respondent’s facilities and all of Respondent’s U.S. Flag Vessels, including in all places where notices for employees are customarily posted, including Respondent’s internal website for employees or e-mails, if Respondent customarily uses one or more of these electronic methods for communicating with employees, and maintain for a period of at least 180 consecutive days from the date of posting, the attached Notice to Employees, to be signed by a responsible official of Respondent and the date of actual posting to be shown thereon.
Respondent shall provide a copy of the OSHA SPA fact sheet, (DWPP FS-3762 08/2018) to all currently employed seamen and all newly hired seamen for the next two years.
The parties have 30 days from the receipt of these Findings to file objections and to request a hearing before an Administrative Law Judge (ALJ). If no objections are filed, these Findings will become final and not subject to court review. Objections must be filed in writing with the Office of Administrative Law Judges:
Primary method - via email to: OALJ-Filings@dol.gov
Secondary method (if unable to file via email) - via hard copy submission to: Chief Administrative Law Judge - Office of Administrative Law Judges U.S. Department of Labor
800 K Street NW, Suite 400 North
Washington, D.C. 20001-8002
Telephone: (202) 693-7300; Fax: (202) 693-7365
With copies to:
Primary method - via email to: R6.11c.OSHA@dol.gov
Secondary method (if unable to file via email) - via hard copy submission to: Regional Administrator
U.S. Department of Labor-OSHA
525 S. Griffin Street
Room 602
Dallas, TX 75202
And copies to:
All parties to this complaint
The hearing is an adversarial proceeding before an Administrative Law Judge (ALJ) in which the parties, including the Assistant Secretary, represented by the Regional Solicitor’s Office, are allowed an opportunity to present their evidence de novo for the record. The ALJ who conducts the hearing will issue a decision based on the evidence, arguments, and testimony presented by the parties. A review of the ALJ's decision may be sought from the Administrative Review Board, to which the Secretary of Labor has delegated responsibility for issuing final agency decisions under the SPA. A copy of this letter has been sent to the Chief Administrative Law Judge along with a copy of the complaint. The rules and procedures for the handling of SPA cases can be found in Title 29, Code of Federal Regulations, Part 1986 and may be obtained at www.whistleblowers.gov.
Sincerely,
Michael Mabee
Assistant Regional Administrator - Whistleblower Protection Program
cc: Chief Administrative Law Judge, USDOL U.S. Coast Guard
c/o Charles C. Goetsch, Esq.
Charles Goetsch Law Offices LLC