ARB CASE NO. 03-046
ALJ CASE NOS. 00-CAA-20
01-CAA-09
01-CAA-11
DATE: June 30, 2004
In the Matter of:
MORTON E. CULLIGAN,
COMPLAINANT,
v.
AMERICAN HEAVY LIFTING SHIPPING
COMPANY, INTERNATIONAL ORGANIZATION
OF MASTERS, MATES, AND PILOTS, AND
INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Edward A Slavin, Jr., St. Augustine, Florida
For the Respondent, American Heavy Lifting Shipping Company:
Leslie A. Lanusse, Esq., Francis V. Liantonio, Jr., Esq., Raymond P. Ward, Esq., Adams and Reese LLP, New Orleans, Louisiana
For the Respondent, International Organization of Masters, Mates, and Pilots, and International Longshoremen's Association:
John M. Singleton, Esq., Albertini, Singleton, Gendler & Darby, LLP, Owings Mills, Maryland
OSHA dismissed all three claims for lack of jurisdiction.5 ALJX 16. An OSHA inspector advised Culligan that his complaints belonged in the USCG forum because the Monseigneur was a USCG-inspected vessel, and thus not within OSHA's safety and health jurisdiction. RX 42, 44-45. Culligan requested a hearing.
1 These statutes generally prohibit employers from discharging or otherwise discriminating against any employee "with respect to the employee's compensation, terms, conditions, or privileges of employment" because the employee engaged in protected activities such as initiating, reporting, or testifying in any proceeding regarding environmental safety or health concerns. See 29 C.F.R. § 24.2.
2 The following abbreviations are used herein: Claimant's Exhibit, CX; Respondent's Exhibit, RX; hearing transcript, TR; Recommended Decision and Order, R. D. & O.; and Administrative Law Judge's Exhibit, ALJX.
3 The tanker carried petroleum products and other combustible and hazardous materials.
4 The NCAR is a company complaint form, which reports an unsafe condition and requests corrective action or suggests safety improvements. The written complaint or suggestion is submitted to the ship's safety committee, which determines its merit and any further action to be taken. TR at 58, 130, 331-32, 604, 1205.
5 The September 1, 2000 OSHA letter to Culligan dismissing his complaint stated that "the evidence indicates that the safety and concerns he reported to the USCG when he was discharged did not include alleged violations of any of the environmental acts noted above." RX 45; see RX 42, 44.
6 Culligan also named several individual respondents in the three complaints. See discussion, infra.
7 DOL's regional solicitor stated that the ALJ had procedural jurisdiction to hear this case because OSHA issued a notice of determination under 29 C.F.R. § 24.4(d)(2). Secretary of Labor's Response to Court's Order at 2. AHL cited Mallard Bay Drilling, Inc. v. Herman, 212 F.3d 898 (5th Cir. 2000) and argued that OSHA's jurisdiction was pre-empted by the United States' Coast Guard. AHL Response to the ALJ's Order at 5-8. Culligan's counsel responded only that environmental jurisdiction existed and that the whistleblower protections applied to U.S. ships in the coastal oil tanker trade. Further Response to Court's September 18 Order at 2.
8 The six environmental statutes under which Culligan filed his complaints contain the same basic whistleblower protection provisions, which generally prohibit an employer or person from discriminating or retaliating against an employee for engaging in protected activities, including internal complaints, that constitute "action to carry out the purposes of the acts" or relate to "the administration and enforcement of the provisions of the acts." 42 U.S.C.A. § 7622, 42 U.S.C.A. § 9610, 42 U.S.C.A. § 6971, 42 U.S.C.A. § 300j-9, 33 U.S.C.A. § 1367, 15 U.S.C.A. § 2622. The ARB has held that the use of "person" in the FWPCA, SWDA, and CERCLA in place of "employer" in the other environmental statutes still requires that the respondent have an employment relationship with the complainant or act in the capacity of an employer, that is, exercise control over the terms, conditions, or privileges of the complainant's employment. Lewis v. Synagro Technologies, Inc., ARB No. 02-072, ALJ Nos. 02-CAA-12, 14, slip op. at 10-14 (ARB Feb. 27, 2004).
9 These activities are covered by the ocean dumping provisions of 33 U.S.C.A. § 1401 et seq., or by 33 U.S.C.A. § 1901 et seq. covering the prevention of pollution from ships. Neither subchapter has any provision for whistleblower protection.
10 Territorial waters of the United States extend three miles from the coasts. U.S. v. California, 332 U.S. 19, 33-34 (1947). The contiguous zone extends nine miles from the three-mile limit, cite, and both make up the customs waters, 19 U.S.C.A. § 1401(j). The navigable waters include the territorial seas, 33 U.S.C.A. § 1362(7). The Magnuson Act covers the continental shelf, defined as the seabed and subsoil of the submarine areas adjacent to the coast but outside the territorial waters. 16 U.S.C.A. § 1802(6). The high seas consist of all waters beyond the territorial waters. 16 U.S.C.A. § 1802(19). International waters are beyond the contiguous zone and are not subject to the sovereignty of any nation. See generally United States v. Hidalgo-Gato, 703 F. 2d 1267 (11th Cir. 1983).
11 AHL introduced evidence that (1) the oil drums were not dumped at sea, and (2) that those oil drums were properly disposed of in Tampa, Florida. TR at 778-79; RX 38-39.
12These include the alleged dumping of oil-contaminated drums and untreated garbage into the ocean, the malfunctioning sanitation equipment, and the faulty steam valves left open while the ship was docked.
13 We agree with the ALJ's conclusion that the same reasons prompting AHL to fire Culligan supported its "do-not-hire" decision, especially when coupled with the vituperative e-mail communications Culligan sent to AHL after his discharge. R. D. & O. at 33. See RX 74-86.
14 The union informed Culligan in a letter dated February 27, 2001 that its denial of membership did not prevent him from using the union's hiring hall to seek employment. CX 21D.
15 Additionally, we deny, without further comment, Slavin's Motion to Order Full Relief against the union because it chose not to file a reply brief in response to the ARB's February 4, 2003 order setting a briefing schedule.