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THE COAST GUARD “INJUSTICE” HANDBOOK [Publication History: Original Issue Date July 9, 2009

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THE COAST GUARD “INJUSTICE” HANDBOOK [Publication History: Original Issue Date July 9, 2009 NMA REPORT #R-204, Revision 1 124 North Van Avenue Houma, LA 70363-5895 DATE: March 1, 2010 Phone: (985) 851-2134 Fax: (985) 879-3911 www.nationalmariners.org [email protected] Asserting our right “…to petition the Government for redress of grievances.” Amendment 1, U.S. Constitution, Dec. 15, 1791 THE COAST GUARD “INJUSTICE” HANDBOOK [Publication History: Original issue date July 9, 2009. Revision #1, Mar. 1, 2010] TABLE OF CONTENTS Executive Summary...............................................................................................................................................2 Foreword ...............................................................................................................................................................3 Chapter 1 – Introduction to Injustice Coast Guard Style .....................................................................................5 Chapter 2 – Coast Guard “Settlement Agreements” – The Root of the Problem .................................................8 Chapter 3 – The Curse of Drugs and Alcohol......................................................................................................18 Chapter 4 – Details of Drug and Alcohol Testing ..............................................................................................23 Chapter 5 – The Periman Case: Fraudulent Drug Test and Coast Guard Intransigence ...................................52 Chapter 6 – The Coast Guard Abuses its Power to Silence its Critics.................................................................63 Chapter 7 – Captain Ken: Vindictive Employer Seeks Revenge on an “At Will” Employee ..............................67 Chapter 8 – Stopping the Bad Guys ....................................................................................................................73 Chapter 10 – Dresser: The Case That Made Headlines.......................................................................................78 Chapter 11 – A Former ALJ Reports Corruption at the Top ...........................................................................85 Chapter 12 – Congressional Testimony by Professor Abraham Dash ................................................................90 Chapter 13 – The Rogers Case – Unrestrained Coast Guard Vindictiveness ...................................................93 Chapter 14 – The Drug Test and Coast Guard Abuse of Power .......................................................................101 Chapter 15 – The Trahan Case: Misguided Policy Destroys a Mariner’s Career, Family, and Livelihood ............106 Chapter 16 – ALJ Revokes Master’s License for “Refusal to Test”..................................................................112 Chapter 17 – The Open and Shut Consequences of Refusing to Test................................................................118 Chapter 18 – Illinois Waterway Bridge Allision Hearing Masks Significant Regulatory Shortcoming ............121 Chapter 19 – NMA Sends Report to Congress on Investigations ......................................................................133 Chapter 20 – The Coast Guard Hates Whistleblowers: The Eric Shine Story.................................................136 Chapter 21 – Update to the Present...................................................................................................................159 Chapter 22 – A Larger Question: Must the Coast Guard Continue to Regulate Merchant Mariners?............164 INDEX “R” – Index of National Mariner Association’s Research Reports ......................................................168 1 Page Revised February 2010 EXECUTIVE SUMMARY The National Mariners Association (NMA) is the voice for approximately 126,000 American “limited-tonnage” merchant mariners with Coast Guard credentials who serve aboard tugboats, towboats, small passenger vessels, offshore supply vessels, charter boats and assorted “workboats.” The Coast Guard has regulated American merchant mariners since 1942, first as a wartime necessity, but since 1946 as part of a regulatory and law enforcement agency under the Administrative Procedures Act. The Coast Guard’s “Marine Safety” mission includes vessel inspection, “credentialing” (e.g., licensing) merchant mariners, investigating marine casualties, and disciplining merchant mariners. Our “limited-tonnage” mariners are “transportation workers” who serve on “boats” rather than “ships” although some of these boats may exceed 200-feet in length. From 1967 until 2003, the Coast Guard was part of the U.S. Department of Transportation. In 2003, the Coast Guard moved into the newly created Department of Homeland Security and placed its greatest emphasis on security issues while allowing its traditional “Marine Safety” mission to degenerate to the point where the Coast Guard no longer shows much interest in our mariners’ health, welfare, or safety(1) while cushioning their own jobs.(1) [(1)Refer to our Report #R-205.] Our merchant mariners always have been civilians while the Coast Guard increasingly identifies itself as a branch of the military. Ever since Congress passed the Posse Comitatus Act in 1876, the military has not been allowed to regulate civilian affairs. Nevertheless, Congress granted “the Secretary (of Homeland Security) “…general superintendence over the merchant marine of the United States and of merchant marine personnel(1)…” The relationship has deteriorated as a result of poor leadership and the Coast Guard’s lack of knowledge and understanding as well as mistreatment of our merchant mariners. [(1)46 U.S. Code §2103] In recent years, the relationship between the Coast Guard and our mariners turned sour. The Coast Guard neglected its role in domestic vessel inspection even before the events of 9/11.(1) Government reports clearly show the Coast Guard also neglected its role in “investigations” since 1994.(2) The perception of “injustice” pervaded the Coast Guard’s Administrative Law program long before the House of Representatives conducted a hearing on front page news of abuses reported in the Baltimore Sun in June 2007.(3) Shortcomings in mariner “Credentialing” (e.g., licensing) seriously impacted our mariners, the backbone of the industry’s workforce.(4) Our Association followed these issues and reported on them in a series of over 208 reports. [(1)Refer to our Report #R-401-E. (2)Refer to our Report #R-429-A, #R-429-B & #R-429-M. (3)Refer to our Report #R-429-K. (4) Refer to our Reports #R-429-D & #R- 429-D, Rev. 1. An index and access to for viewing these reports appears at the end of this report.] This particular report focuses on only one portion of the Coast Guard’s Marine Safety Mission. The House of Representatives, Committee on Transportation and Infrastructure under Chairman James Oberstar and its Subcommittee on Coast Guard and Maritime Transportation under Chairman Elijah Cummings focused their attention on the Marine Safety issues for the past three years. Their legislative “proposals” to correct Marine Safety related problems currently reside in Title VIII of H.R.-3619 that passed the House of Representatives but still must be considered by the Senate. A similar proposal (HR-2830) in the 110th Congress that included important changes to the Administrative Law system passed the House overwhelmingly by a vote of 395 to 7 but was never acted on by the Senate. Consequently, two years of work of 75 Congressmen on the Transportation and Infrastructure Committee to craft an authorization bill that would have helped our mariners and had their support went down the drain. This failure to govern effectively is part of a much larger problem needs must be addressed by the electorate later this year. Our Association fully supports the efforts of Congressmen Oberstar and Cummings to put the Marine Safety mission back on track and to restore a greater measure of civilian control to the U.S. merchant Marine. We appreciate the opportunity they extended us to offer testimony on Marine Safety issues on three separate occasions. Coast Guard procedures to punish mariners for violations of laws and regulations are supposed to be “remedial” in nature. This is a cruel joke for our mariners and attorneys that occasionally represent them as related in this report and in Congressional testimony on July 31, 2007. This report will show, the Coast Guard stretched “remedial” far beyond the breaking point and used it to destroy the lives and careers of our mariners. This report tells the story in considerable detail and numerous references cite connections to many of the other shortcomings within the Coast Guard’s Marine Safety mission. 2 Page Revised February 2010 FOREWORD Sometimes we ordinary people get into serious trouble when we venture on the water. If heavy seas swamp our boat, if we suffer a mechanical failure or a fire, then we devoutly pray for the Coast Guard to intervene. They do, and that evening they make the news. The whole nation watches and cheers as brave Coast Guardsmen descend from helicopters to rescue those in danger. I have long admired, at a distance, the wonderful people of the Coast Guard who risk their lives to save others. These folk could have chosen to be grocers or accountants. Instead they chose to help others, placing their own lives on the line. They go willingly into harm’s way. They live by their motto, Semper Paratus, Latin for "Always Ready." The only time I saw the Coast Guard in action was while returning to the U.S. after World War II. Our ship stopped just off
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