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OSHA orders Bouchard to compensate illegally fired seaman

Dec 26, 2019 11:32 AM

The agency says the mariner lost his job after reporting safety concerns to the Coast Guard

Two Bouchard employees were killed when barge B. No. 255 exploded off Port Aransas, Texas, on Oct. 20, 2017. A brother of one of the victims claimed he was fired afterward for cooperating with investigators.

NTSB photo

Two Bouchard employees were killed when barge B. No. 255 exploded off Port Aransas, Texas, on Oct. 20, 2017. A brother of one of the victims claimed he was fired afterward for cooperating with investigators.

The following is text of a news release from the Occupational Safety and Health Administration (OSHA):

(NEW YORK) — A whistleblower investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration has found that Bouchard Transportation Co. – a petroleum barge company based in Melville, N.Y. – and its officers violated the whistleblower protection provisions of the Seaman’s Protection Act (SPA) when it retaliated against a seaman who cooperated with U.S. Coast Guard (USCG).

OSHA’s Whistleblower Protection Program investigators concluded that actions of Bouchard Transportation Co.; Morton S. Bouchard III; Brendan Bouchard, and Kevin Donohue constituted retaliation against the seaman for protected activity under the SPA and would dissuade a reasonable seaman from reporting safety issues.

On Oct. 20, 2017, the barge Buster Bouchard/B. No. 255 exploded off Port Aransas, Texas, killing two Bouchard Transportation employees. One of the victims’ brothers, who was also a Bouchard Transportation Co. employee, claimed he was fired for cooperating with investigators and reporting other safety concerns to the USCG. Under the SPA, reporting alleged violations of maritime safety laws and regulations, cooperating with USCG safety investigations and furnishing information to the USCG about facts related to any marine casualty resulting in death, are protected activities.

The seaman engaged in protected activity beginning several days after his brother’s death, and Bouchard Transportation Co.; Morton S. Bouchard III; Brendan Bouchard, and Kevin Donohue fired him just over three months later. In early January 2018, the seaman inquired about when he could return to work and received no response. They then gave him no reason for his Jan. 31, 2018, termination.

OSHA has preliminarily ordered the employer to pay the seaman:

• Back pay with interest plus compensatory damages for losses to his 401(k);
• An additional two years of lost wages in lieu of reinstatement;
• No less than $50,000 for emotional distress, pain and suffering, loss of reputation, and mental anguish resulting from Bouchard’s adverse employment action; and
• No less than $200,000 in punitive damages for Bouchard Transportation Co.; Morton S. Bouchard III; Brendan Bouchard, and Kevin Donohue’s reckless disregard for the law and callous indifference for seamen’s rights under the SPA and egregious conduct.

OSHA also ordered the employer to refrain from making any adverse statements with respect to the seaman’s termination and/or any of the facts at issue in this case; and to train – within 60 days from receipt of OSHA’s preliminary order – its managers and employees about seamen’s rights under the SPA without fear of retaliation and provide proof of such training to OSHA.

“This case revealed troubling safety violations in the wake of a seaman’s death and it exemplifies how a culture of intimidation can have disastrous results for seamen,” said OSHA Regional Administrator Richard Mendelson. “Employers and vessel owners must know and respect that the Seaman’s Protection Act safeguards seamen’s cooperation with USCG and other safety investigations and the reporting of safety concerns.”

OSHA enforces the whistleblower provisions of SPA and 22 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Program webpage.

Under the Occupational Safety and Health Act, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

The mission of the Department of Labor is to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.

Editor’s note: The U.S. Department of Labor does not release the names of employees involved in whistleblower complaints.

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