The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has found that New York-based Bouchard Transportation and three of its officers violated whistleblower protection rules when it retaliated against a seaman who cooperated with a federal investigation into a deadly barge explosion off Port Aransas, Texas in 2017.
OSHA’s Whistleblower Protection Program investigators concluded that actions of Bouchard Transportation Company Inc., B. No. 272 Corp, and its officers, Morton S. Bouchard, III, Brendan Bouchard, and Kevin Donohue, constituted retaliation against the seaman for protected activity under the Seaman’s Protection Act (SPA) and would dissuade a reasonable seaman from reporting safety issues, OHSA said in a statement.
The ruling is related to the October 27, 2017 explosion on board the B. No. 255 barge off Port Aransas, which killed two Bouchard Transportation employees and resulted in release of about 2,000 barrels of crude oil into water.
After the accident, one of the victims’ brother, who was also an employee of Bouchard Transportation, claimed he was fired for cooperating with investigators and reporting other safety concerns to the USCG. “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 January 31, 2018, termination,” OHSA said.
Under the SPA, reporting alleged violations of maritime safety laws and regulations, cooperating with USCG safety investigations and providing information to the USCG about facts related to any marine casualty resulting in death, are protected activities.
According to OSHA, investigators found that the brother was fired just over three months after the seaman engaged in activity protected under the SPA beginning several days after his brother’s death.
OSHA has preliminarily ordered Bouchard to pay the seaman a minimum of $250,000 in emotional distress and punitive damages, plus back pay with interest, compensatory damages to his retirement account, and an additional two years of lost wages.
OSHA also ordered the employer to refrain from making any adverse statements with respect to the seaman’s termination and and/or of the facts at issue in the case. The company must also train its managers and employees about seamen’s rights under the SPA without fear of retaliation and provide proof of the training to OSHA within 60 days.
“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.”
The National Transportation Safety Board’s investigation into explosion found that the probable cause of the accident was a lack of effective maintenance and safety management of the barge by Bouchard Transportation Company. The report also cited ineffective inspections and surveys by both the Coast Guard and the American Bureau of Shipping and failure to correct unsafe conditions as contributing to the accident.
The firing of a whistleblower isn’t the first time Bouchard has lashed out against current or former employees speaking out about the company.
In 2018, the company sued the anonymous, crowd-sourced company review platform Glassdoor to turn over the identity of a user who disparaged Bouchard’s safety culture on the platform in 2015 so that the company could pursue a defamation lawsuit against the person. Bouchard eventually dropped the case.
Testimony about Bouchard’s safety culture was also one of the focal points in a two-week formal public hearing in 2018 into the cause of the Barge 255 accident conducted by the U.S. Coast Guard. At the time, Bouchard was so concerned about the impact of the testimony on its reputation that the company filed a lawsuit in U.S. District Court in Houston halfway through the inquiry seeking, unsuccessfully, to shut down the hearings.