Boudreaux v. United States Coast Guard
| Docket Number | ME-30002,NTSB Order EM-219 |
| Decision Date | 29 October 2021 |
| Parties | ROBERT RYAN BOUDREAUX, Appellant, v. United States Coast Guard, Appellee. |
| Court | Court of National Transportation Safety Board |
Adopted by the NATIONAL TRANSPORTATION SAFETY BOARD at its office in Washington, D.C. on the 28th day of October, 2021
1. Background
Appellant seeks review of the Commandant's[1] decision on appeal (CDOA) 2723, dated December 30, 2019, which affirmed, as modified, a decision and order (D&O) issued by Coast Guard Administrative Law Judge Bruce T. Smith on October 24, 2017 following an evidentiary hearing convened on July 11 2017.[2] By that decision, the law judge denied appellant's appeal of the Coast Guard's October 18 2016, complaint, finding appellant committed misconduct under 33 C.F.R. § 5.27 by violating the drug and alcohol policy of his maritime employer, in refusing to submit to company-mandated random alcohol testing on April 9, 2016.[3] After reviewing the evidence, the law judge added as an additional element of the charged misconduct that appellant failed to comply with the Master's lawful order. He then found the charge proven as a violation of both a company policy and a Master's order. The law judge ordered a 60-day suspension of appellant's Merchant Mariner Credential. The Commandant affirmed the law judge's order after modifying the wording of four of the law judge's findings of fact. We deny appellant's appeal.
The vast majority of the facts of this case are undisputed. Appellant was the holder of a Merchant Mariner Credential (MMC) issued by the United States Coast Guard. Under the authority of his MMC, appellant was employed as an able seaman at various times by OSG Ship Management (OSG). OSG maintained a drug and alcohol policy entitled "OSG Management System SPM-05 - Drug and Alcohol Enforcement Procedures" (OSG Policy). The stated purpose of the OSG Policy was "to ensure that all Company vessels are manned and supported by personnel who are drug and alcohol free."[4] The OSG Policy stated [5] Specific provisions of the OSG Policy which are relevant here include:
The OSG Policy implemented a random testing program which it summarized by stating [7] This incomplete sentence is followed by a full page of additional information describing the testing methods (urine for drugs; saliva or breathalyzer for alcohol) and other provisions and procedures for conducting the tests. The policy repeatedly warned that refusal to submit to drug and/or alcohol testing or violating any other provisions of the policy will result in immediate termination of employment.[8]
OSG utilized a third-party contractor to administer the OSG Policy. That contractor used computer software to randomly select two OSG vessels from among the OSG fleet for drug and alcohol testing. The two selected vessels were designated as "primary" and "secondary." OSG utilized a different contractor to perform the actual drug and alcohol tests of OSG employees aboard its ships. The OSG Labor Relations Specialist testified that once he receives the two selected vessels from the contractor, if the "primary" vessel is out to sea, is in a port with limited testing capabilities, or has been recently tested, he will choose the "secondary" vessel to conduct tests instead.[9]
On June 29, 2015, appellant completed an internal OSG suggestion form, called a "Management of Change" request.[10] He suggested that OSG "remove random testing for alcohol as all testing must follow DOT procedures," because the company "must follow DOT's procedures in alcohol testing[, ] it follows therefor they cannot give a random test."[11] OSG rejected appellant's proposal, finding "the Company is in compliance and may perform an alcohol test as part of random testing if it is noted as part of the Company's D& A Policy."[12]
Appellant testified that he was aware OSG had rejected his proposed change, and that he continued to believe the alcohol testing portion of the OSG Policy violated the regulations.[13]He discussed the issue and his continuing concerns with the Master of the OSG vessel on which he was serving, the oil tanker M/V OVERSEAS LONG BEACH, in September 2015.[14] The Master emphasized to appellant that the OSG Policy remained in force and that failure to comply with that policy would result in termination.[15]
On January 1, 2016, appellant signed OSG Form QR-CRW-27, indicating, among other things, that he had read and understood the OSG Policy and that he agreed to comply with all requirements set forth therein.[16] On March 8, 2016, appellant again joined the crew of the OSG vessel OVERSEAS LONG BEACH as an able seaman.
On March 15, 2016, the OVERSEAS LONG BEACH was selected by the contractor as the secondary vessel.
As a result of the March 15, 2016, selection by the contractor, on April 9, 2016, the OSG Labor Relations Specialist determined that the "primary" vessel had already been tested on April 1, 2016.[17] He opted to select the "secondary" vessel, the OVERSEAS LONG BEACH, for testing. Based on that selection, all employees aboard the OVERSEAS LONG BEACH were subjected to both federally mandated urinalysis drug testing (DOT testing) and OSG breathalyzer testing (non-DOT testing). The ship's Master informed the crew over the vessel's public address system that they were to report to the ship's medical facility for drug testing.
While waiting in line for the test, appellant approached the Master and informed him that he likely would not submit to the breathalyzer test. The Master testified that while he did not specifically tell appellant "I hereby order you to take this test" he did inform appellant that failure to do so would result in appellant's termination.[18] Later that morning, appellant again approached the Master and told him he had concerns over the validity of the alcohol test and the collector's credentials. The Master again informed appellant that failure to submit to the alcohol test would be grounds for termination.[19]
At some point, appellant asked the collector to supply her credentials. She showed him her driver's license and Transportation Worker Identification Credential (TWIC) card. Appellant also asked to see the collector's training certificate, which she informed him she did not have with her but that it had already been provided to her employer before being hired. Telling the collector that she did not know the rules, he reluctantly completed the DOT testing for illegal drugs but refused to complete the non-DOT testing for alcohol.[20] The Master advised appellant that if he refused to submit to the non-DOT testing, he would be fired for cause, which he was that day.[21]
The law judge's D&O included a detailed summary of the evidence and affirmed the Coast Guard's complaint. In addition to finding the appellant violated a company policy, as alleged by the Coast Guard, the law judge also found that appellant's refusal to submit to the alcohol test constituted a violation of a Master's order. Accordingly, the law judge added language to the Findings of Fact to include the additional element. The law judge did not impose an additional sanction against appellant based on this additional element. He rejected the Coast Guard's recommended sanction of a 90-day suspension, instead imposing a 60-day suspension.
In accordance with Coast Guard procedures, appellant appealed the law judge's D&O. The Commandant affirmed the law judge's decision as modified in the CDOA, and specifically rejected the issues appellant raised on appeal.
In reaching his decision, the Commandant evaluated those Findings of Fact made by the law judge which were not entirely supported by the evidence, determining the law judge erred in concluding that the Master's public address announcement to the crew constituted a Master's order. He found two of the law judge's Findings of Fact erroneously included reference to this conclusion.[22] Accordingly, the Commandant edited those two Findings of Fact to omit all reference to the erroneous conclusion. The Commandant determined that the remainder of those Findings were supported by the evidence.
The Commandant also found the law judge abused his discretion by referring to an excluded exhibit in one Finding of Fact. Because the Finding was adequately supported by other uncontested evidence, the Commandant determined that the law judge's error was harmless.
On appeal to this Board, appellant reiterates primarily the same complaints he made to the law judge and the Commandant. Indeed, the appellant made very few actual arguments in his appeal brief to the Board, stating instead [23]...
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