OMSA General Membership Meeting, April 24, 2001
LAFAYETTE HILTON & TOWERS
1521 W. Pinhook Road
Lafayette, LA
(800) 332-2586 or (337) 235-6111

I. COMMITTEE MEETINGS: 10:00-12:00 Noon (Salons D & E - 4th Floor)
Committee Chairmen are to prepare their respective agendas and provide a copy thereof to the OMSA staff. The staff will update issues of interest to all committees and, subsequently, meet with individual committees on specific problem areas or projects.

II. SPECIAL UNION PRESENTATION: 1:30 - 3:00 P.M. (Maple -1st Floor)
Rich Mauti will present Dale Carnegie Training

• Special Teams - Teambuilding
• Reacting to Change
• Loyalty in the Workplace
• Attitude
• Motivation
• Leadership
  

III. GENERAL MEMBERSHIP MEETING: 3:30-5:30 P.M. (Salons D, E & F - 4th Floor)

Important business will be discussed and Status Reports presented on the following topics to update members on developments since the October meeting: Please make every effort to attend!

• Union Activity Update;
  
  
• Progress of USCG/OMSA STCW Task Force; STCW Issues Remaining: viz U.S. OSV Near Coastal/Foreign and OSV Oceans; also, license bridging to other vessels (non OSV) of equal tonnage. (Removal of OSV trade restriction) There will be IMPORTANT announcements about new developments in this area (STCW standards re overseas operations);
  
  
• Report by Skip Smith of ABS on vessel design issues related to dual certification of OSVs, the Alternate Compliance Program and potential ramifications to overseas operations;
  
  
• Coast Guard Updates:
  o Enforcement actions in response to GCMA/UNION Charges of Unsafe Operations;
  o NOSAC "Fatigue" Study, and the Crew Alertness Campaign;
  o Temporary MMD Policy;
  o Coast Guard Advisory Committees (NOSAC, MERPAC, TSAC);
  
  
• Report on the Associate Member Business Development Committee;
  
  
• U.S. Customs Update
  

IV. COCKTAILS: 5:45-7:00 P.M. (River Foyer - 4th Floor) Brilliant Chitchat!

V. DINNER: 7:00-9:00 P.M. (Salons D, E & F - 4th Floor)

OMSA
3rd Annual
CAJUN TROPICS FISHING RODEO

Take note OMSA fishermen! We have a new rodeo location and date. This year's Cajun Tropics Fishing Rodeo will be launched from The Sand Dollar Marina in Grand Isle, Louisiana on Friday, June 29th with a Cajun Tropic Social. Saturday, June 30th will be the Fishing Tournament Day with fisherpersons out at safelight and returning per the weigh-in times scheduled.

Notices and registration forms with detailed information about the rodeo & Grand Isle will be mailed shortly. In the interim, I am providing some "start-up" information for those who are not familiar with the area. Grand Isle is approximately 2 hours south of Baton Rouge or New Orleans. Please note that the rodeo is the weekend before 4th of July. Therefore, some of you may want to begin to make marina and room arrangements now.

See the insert for motels, marinas and guides.

Slow, but Sure?

For over two years, OMSA and its members have worked hard and steadily to design and develop a solid and successful strategy to prevent unions from penetrating our industry. So far, so good!

At considerable expense, in both time and money invested, OMSA's Board and our members have directed and funded an effective resistance to union encroachment into the offshore oil and gas sector. Despite aggressive union campaigns against a handful of selected corporate targets, and a thick blanket of union propaganda aimed broadly at the entire industry, not one offshore vessel operator has succumbed to the union blitzkrieg. To date, the joint forces and collective finances of the International Transportation Workers Federation (ITF), the AFL-CIO's five maritime trade unions, the Offshore Mariners United (OMU) and GCMA have not been able to persuade enough offshore mariners and workers to accept the union's transparent, self serving propaganda and to betray the employers in our industry that have, over many years, provided extraordinary job employment opportunities for them, with more to come. So far, so good.

But remember this. The AFL-CIO's "southern" and offshore strategy does not contemplate short-term victories. They will welcome easy wins. But they do not expect them. Against Offshore Logistics, several years ago, the OPEIU made relatively short work of this major helicopter service firm and organized the company in one burst. The same was true with respect to the McDermott situation in Amelia. But, in the case of Petroleum Helicopters (PHI), over the course of four years, the unions lost two elections before they finally and very narrowly won the third encounter.

To PHI's credit, they negotiated in good faith, as the law requires. But, they have continued to fight and successfully resist, to date, the most obnoxious and potentially damaging demands of the union (OPEIU), as is their legal right. "The jury" is still out in this case, and it won't be over until the pretty (and tough) lady sings.

Notwithstanding the losses by management to the unions at Offshore Logistics and the McDermott Shipyard in Amelia, and the ongoing, still unsettled battle at PHI, therefore, we are fortunate to be able to claim that the offshore marine industry in the Gulf of Mexico, at least, is still union free. But it would be foolish indeed if we became complacent and assumed that the AFL-CIO's strategic plan to organize the offshore industry will be easily and/or soon abandoned.

We should take heart from the fact that we have been and continue to be largely successful against such an aggressive well-financed machine. This can and should give us confidence that we are beating them, that we can beat them again, and that we will, finally, beat them in the end. But make no mistake. This fight is not over. There is much more to be done. We must be deliberate. We must be determined. Above all, we must be careful not to be undone by our confidence, and we must continue to urge others in our industry that they must become more actively engaged in this fight for the "soul" of this industry.

"Our" fight is, after all, the industry's fight. The fight is for everyone- offshore drilling contractors, offshore diving and construction contractors, seismic, well servicing, contractors - everyone - not just helicopter or vessel operators. Surprisingly, other sectors of our industry and our suppliers have been relatively slow to fully appreciate and act on the threat posed by these unions to all of us, although we have seen signs, recently, that we and others have been making at least a slight dent in the general apathy that has frustrated us mightily for two years. Undenialibly, progress in this respect has been painfully slow. But, (and we hope we are correct), the signs that awareness is growing have improved; too slowly, to be sure, but growing, nonetheless.

A handful of companies - not many, but some - have recently contacted us about how they can help. Also, a new group called the Gulf Coast Employers Association has been formed to raise industry awareness of the union threat and encourage pro-employee initiatives throughout the Gulf of Mexico region. We certainly welcome their efforts.

What everyone should recognize, however, is this: Slow, but sure may just not cut it. The perception that union activity is limited to the handful of campaigns that have been mentioned in this message is a disarmingly dangerous and potentially destructive perception. While OMSA has been raising hell about the length and breadth of actual and prospective union encroachment under the AFL-CIO's broad program to unionize the entire Gulf South, many offshore industry CEO's continue to believe that the threat, if any, is relatively isolated and superficial. Bad assumption.

IT MAY BE of INTEREST to KNOW THAT IN THIS PAST YEAR ALONE, our program partners, PTI LABOR RESEARCH, INC., report that between April 2000 and April 2001, union petitions to the NLRB in Regions 12,15, and 16 (Primarily Gulf South Region) number nearly 400. This roughly triples the number of petitions last year. And if that number of petitions have actually been filed, one can assume that their infiltration of companies under attack and influence with employees is actually much deeper than that.

Not unlike the old sucker trick where one guy points up and looks into the sky at an "imaginary" item, the stooges are distracted, while accomplices pick their pockets.
So, in our case, while everyone is watching the fireworks between the offshore industry and union attempts to organize a handful of helicopter and boat companies, the AFL-CIO, Teamsters, ILA and miscellaneous other unions, according to the PTI research, are working below industry radar and scooping up prospects left and right. Every company is fair game. This union play is really a bigger scam than meets the eye.
Is anyone listening?

Bob Alario

The Offshore Industry Union Free Operations Program

The Operations Program is alive and well. Here are some of the things that have happened in the last quarter.

• Twenty-two OMSA members attended the OMSA "Positive Employee Relations" training that began on March 19. Twelve of the attendees attended the full five days of training and are now "certified" to teach the two-day program at their companies.
• Weekly, "Hot Topic" union-avoidance seminars are being held on Wednesdays. As of April 5, eleven member companies, and one non-member, attended the sessions. All tolled, 70 individuals including Captains, human resource personnel and operations management attended the sessions. A listing of all the sessions follows:
  o The Union Authorization Card and the Underground Campaign
  o Union Access
  o Salting
  o Maintaining Discipline During an Organizational Campaign
  o Vulnerability Audits & Corporate Appraisals
  o Good Employee Relations
  o Effective Employee Communications and Complaint Handling
  o Union Promises
  o Union Tactics and Management Actions to Counter Anticipated Unfair Labor Practice Charges
  o Union Corporate Campaigns
  o Union Use of Governmental Agencies to Harass Employers
  o Policy Development re: Log Keeping, Access, Crew Fatigue, etc
  o Why You Don't Want a Union-Typical Contract Provisions

If there is sufficient member interest, another series of seminars will be held beginning in May.

• Special thanks to the following attorneys and their Law Firms for presenting the "Hot Topic" seminars though April 4.
  o Hank Arrington, The Kullman Firm
  o Walter Christy, Frilot Partridge
  o Phil Shuler, Chaffe McCall
  o Jerry Huffman, Lemle & Kelleher
  o Jim Moore, Phelps Dunbar
  o Fred Preis and Stephanie John, McGlinchey Stafford
  o Eric Miller, Adams & Reese
• In conjunction with PTI Labor Research, a "Positive Employee Relations" training program has been scheduled for the week of June 11." This is a repeat of the session held in March. Feedback from those who attended the week-long session rated it as outstanding and "Exactly what we need to keep our employees union-free." More information about this training will be mailed soon.
• Resource Center receives acolytes from Associate Member Law Firms.
  o "The marine industry should be grateful to you and the Association for the hard work that it took to create the Center. It is impressive and will be very helpful during a union organizing campaign.
  o "I want to thank you for your hospitality in showing me the resources available and allowing me to use them in doing research for one of my clients. It is wonderful that your organization has developed an extensive library on the union organizing in the Gulf South and making resource tools available for your members to use in responding to these organizational attempts.
• At our February 1 Membership Meeting our Associate member Law Firms made presentations on 11 relevant union avoidance topics. We can not thank them enough for devoting the time and effort to make the session a success. The two-hour session was well attended and we received lots of good feedback. The following attorneys are listed in the order of their presentations:
  o Phil Shuler, Chaffe McCall
  o Mark Adams, Jones Walker
  o Hank Arrington, The Kullman Firm
  o Jerry Huffman, Lemle & Kelleher
  o Clyde Jacob, Jones Walker
  o Thomas Hubert, Jones Walker
  o Walter Christy, Frilot Partridge
  o Jim Moore, Phelps Dunbar
  o Charles Hollis, The Kullman Firm
  o Brooke Duncan, Adams & Reese
  o Bob David, Onebane Benard
  o Topper Thompson, McCalla Thompson
  o Fred Preis, McGlinchey Stafford
  

Gulf Coast Mariners Assoc. (GCMA) filed a lawsuit against ENSCO Marine Co. alleging that the company regularly failed to report accidents involving ENSCO employees to the U.S. Coast Guard. The suit was filed under the False Claims Act in U.S. District Court in Lafayette, La. According to GCMA President Penny Adams, "Our investigation shows that the U.S. Coast Guard's marine safety data base, which the Coast Guard uses to track accidents and make inspection decisions in the Gulf of Mexico is effectively rendered useless by ENSCO's refusal to report all relevant accidents."

The GCMA lawsuit against ENSCO specifically is seeking the proper filing of all accident reports involving ENSCO employees, the modification of ENSCO's reporting requirements and the imposition of civil penalties. GCMA claims that under federal law civil penalties in this case can range up to $25,000 per failure to report an incident. The mariner's association is alleging that ENSCO failed to file accident reports for at least the five years between 1993 and 1998. ENSCO declined to comment on the pending litigation.

Source: "OFFSHORE DATA SERVICES," Gulf of Mexico Newsletter, March 26, 2001 Vol.15, No. 24

Editors Note: The union forces allied against you have and are continuing to expend considerable resources to attack your businesses. This lawsuit filed against ENSCO by the GCMA is just the latest in their continuing corporate campaign. The heart of the suit is the unions research efforts to find any chink in your armor. The GCMA examined court files looking for employees of ENSCO that had filed suit for injuries and then requested from the Coast Guard copies of corresponding accident reports. That research by the GCMA produced a list of incidents where there was a lawsuit alleging injury and no corresponding accident report submitted to the Coast Guard. All accidents that meet the reporting requirements of the Coast Guard are required to be reported immediately to the Coast Guard. Failure to report these accidents is a violation of Federal Law and subjects a company to potential civil penalties. In this case the GCMA filed the lawsuit under the Federal False Claims Act in an apparent hope of gaining penalties greater than those likely to be given out by the Coast Guard.

Captain Kenneth P. Puckett, the former Training Manager for the Gulf Coast Mariners Incumbent workers Demonstration Grant, filed a lawsuit this morning in the 19th Judicial District court for East Baton Rouge Parish under Louisiana's Whistleblower Law. In the lawsuit, Capt. Puckett charges the Louisiana Human Resources Development Institute (LHRDI) with terminating his employment at the direction of the Seafarers International Union of North America (SIU), AFL-CIO, and Gulf Coast Mariners Association (GCMA) after Capt. Puckett complained that officials from those organizations were mismanaging 3.9 million in federal funds designated to provide safety training to mariners in the Gulf Coast. According to Capt. Puckett, officials from the SIU, AFL-CIO, and GCMA violated federal law by misappropriating and misdirecting federal funds for profit and to promote their union organizing efforts and then retaliated against him when he objected to their conduct.

The SIU and AFL-CIO, working in tandem with GCMA, announced the Gulf Coast Mariners Grant on June 30, 2000 amid much fanfare. At that time, AFL-CIO President John Sweeny promised that the Grant would be used "to help improve the lives of workers, their families, and communities." In his lawsuit, Capt. Puckett paints a very different story. He cites examples of officials from GCMA funneling grant funds into businesses in which they had financial interests. He also alleges that SIU, AFL-CIO, and GCMA recruited ineligible fishermen as trainees to disguise their inability to convince sufficient numbers of eligible mariners to participate in grant programs. Under federal law, any individual associated with an organization receiving funds under the Grant who "knowingly enrolls an ineligible participant, embezzles, willfully misapplies, steals, or obtains by fraud any of the monies, funds, assets, or property" which are the subject of the Grant may be fined up to $250,000 or imprisoned for up to two (2) years. 18 U.S.C. § 665.

Capt. Puckett is represented by attorneys from the Labor Section and White Collar Crime Practice Group of Jones, Walker, Waechter, Poitevent, Carrère & Denègre, L.L.P. Inquiries may be directed to Charlotte Thomas at cthomas@joneswalker.com or (504) 582-8181. The entire suit may be seen at the CCFC website www.ccfconline.com

Coincidentally. The Bush administration has noted the widespread abuse of grants by big labor and in its budget proposes to ensure accountability and force the Department of Labor to focus on grant management. The Department of Labor's own Inspector General noted that the department's $9 billion in annual grants is an area of longstanding concern and has for over three years been stressing the need to ensure that training funds are spent properly and that misspent funds are recovered.

Editor's Note: This lawsuit naturally does not surprise us. Last July, and again in September OMSA wrote to the Department of Labor to insist that 1) the DOL grant had been predicated on misrepresentations of facts by the LHRDI (unions) and 2) the objectives of the applicants were primarily political, viz. unionization of offshore mariners. OMSA has requested a meeting with the Department of Labor and will be discussion those concerns in the near future.

PTI LABOR RESEARCH, INC. reports that between April 2000 and April 2001, union that nearly 400 union petitions have been filed with the NLRB in the Gulf South region. This roughly triples the number of petitions filed last year. If that number of petitions have actually been filed, one can assume that their infiltration of companies under attack and influence with employees is actually much deeper than that.

Linda Chavez, President Bush's first and ultimately unsuccessful nominee for Labor Secretary, announced that she is forming an independent watchdog organization to monitor the involvement of unions in political campaigns. The goal of the group will be to "make sure that [unions] do not have undue influence on our political offices." Chavez's announcement comes just one week after the AFL-CIO announced plans to implement strong efforts for upcoming elections and to lobby more heavily for key legislation this year. At the AFL-CIO executive counsel's annual winter meeting, President John Sweeney said that the labor movement had its best mobilization effort in history in the November 2000 elections and that the federation plans to implement an even stronger mobilization effort for the 2002 and 2004 elections.

Source: "Client Letter, Volume LVI, No. 2," The Kullman Firm, February 28, 2001

An update will be given at the April 24th meeting.

The Seventh Circuit Court of Appeals has thrown out a decision by the National Labor Relations Board which had held that the owners of a Chicago restaurant violated federal labor law when they fired a pro-union employee who was suspected of stealing pages from a manager's log book to use in an organizing campaign. The Seventh Circuit ruled that the restaurant owners did not violate federal labor law. Rejecting the Board's reasoning that the firing was illegal because the restaurant did not have a policy for dealing with such alleged misdeeds as stealing notes from a manager's log book, the court stated that "the Board's reliance on the absence of any formal policy requiring honesty is not only misplaced legally but divorced from the real world and an example of skewed and position-oriented decision-making without the application of logical reasoning and common sense."

Source: "Client Letter, Volume LVI, No. 1," The Kullman Firm, January 31, 2001

TO ACCESS THE MOST CURRENT INFORMATION ON LEGISLATION LISTED IN THIS SECTION GO TO THE THOMAS LEGISLATIVE WEB PAGE AT HTTP://THOMAS.LOC.GOV/ AND ENTER THE BILL NUMBER IN THE ARTICLE

On January 23, 2001 Senators John Breaux (D-LA) and Trent Lott (R-MS) sent a joint letter to President Bush to emphasize their joint commitment to a strong U.S. merchant marine. Breaux and Lott emphasized Bush's strong statements valuing the U.S. merchant marine and the need to fully fund the Maritime Security Program and increase funding for Title XI shipbuilding loan guarantees. This coming at a time when Title XI programs are under attack. In a related story good for our industry the House decided to maintain its Merchant Marine Panel. The panel created in 1995 is a key forum for demonstrating the importance of the Jones Act and U.S. flag shipping to national security. The committee will be chaired by Congressman Duncan Hunter (R-CA)

On January 12, 2001 Senator Daniel Inouye Submitted Senate Resolution 11 (SR11) expressing the sense of the Senate reaffirming the cargo preference policy of the United States. This resolution emphasized the need for a strong U.S. flag merchant marine and the protection of United States shipping through cargo preference rules.

Section 2302(a) of title 46, United States Code, is amended by striking `$1,000.' and inserting `$5,000 in the case of a recreational vessel, or $25,000 in the case of any other vessel. This will increase the penalties for negligent use of a commercial vessel to $25,000.

If you're online, go to www.legis.state.la.us. Click on "who are your legislators?" The site will give you the name of your state representative and senator.

The Coast Guard has opened a rulemaking project to make Technical Amendments to Title 33, Code of Federal Regulations. The Technical Amendments Final Rule will incorporate changes to addresses, staffing symbols and telephone numbers, correct misprints, including typographical errors and misspellings, update cross-references and make conforming amendments, and make other editorial and administrative corrections. The Coast Guard plans to publish the Final Rule by June 1, 2001 so that the changes will be incorporated into the July 1, 2001 codification.

Contact Robert Spears, Project Manager, Commandant (G-MSR-2), Coast Guard Headquarters, at (202) 267-1099 or Stephen Barber, Project Counsel, Commandant (G-LRA), at (202) 267-0132, with any items that you feel should be included. E-mail your items to Robert Spears at rspears@comdt.uscg.mil or fax to him at (202) 267-4547. Deadline for submissions is April 27, 2001.

New regulations from the International Maritime Organization require all passenger ships, and non-passenger ships of 3,000 ITC or more, built on or after July 1, 2002, to carry voyage data recorders.

Source: USCG Marine Safety Newsletter January 2001

Coast Guard Commandant James Loy in testimony before the House Coast Guard and Maritime Transportation Subcommittee urged the Congress to appropriate emergency supplemental funding to cover a shortfall that has led to a reduction in Coast Guard operations. While this request was criticized by the Wall Street Journal, Senator John Breaux strongly supported the Coast Guard request. OMSA has also come out in strong support for additional Coast Guard funding.

Source: "Maritime Update," Transportation Institute, March 9, 2001

In the last issue of the OMSA newsletter and though mailings we informed you of OMSA's efforts to clarify the Jones Act in regard to "special purpose" vessels such as dynamically positioned support vessels, pipelay barges and derrick barges. We reported to you that these vessels may be a point or place in the U.S. for Customs' purposes if the conditions of a two-part test are met. This two-part test is necessary to met the legal determination of whether or not an Outer Continental Shelf (OCS) facility (either floating or fixed) is a point or place in the United States, 1) Is the installation positioned on the OCS for the purpose of exploring for, developing or producing resources therefrom? and 2) Is the installation permanently or temporarily attached to the seabed on the OCS?

To be a point or place in the U.S. in the eyes of the U.S. Customs Service both (1 & 2) parts of the test must be satisfied. If a facility meets both parts of the two-part test then, as we reported, it will be deemed to be a point or place in the U.S. and U.S. Flag Jones Act Qualified vessels must service this OCS facility (fixed or floating). When local Custom's officials received the letter to OMSA explaining Customs position on this issue, they requested further clarification from Mr. Larry Burton, Chief, Entry Procedures and Carriers Branch, U.S. Customs Service.

Mr. Burton sent a letter further defining Customs' Position on this issue to all Gulf Coast Customs offices on March 20, 2001. In his letter Mr. Burton reiterated the paramount importance of the two-part test in determining whether or not a special purpose vessel (or any OCS facility) is a point or place in the U.S. It is clear from Mr. Burton's letter that any special purpose vessel (or other OCS facility) engaged in OCS activities and permanently fixed or temporarily positioned with anchors is clearly a point or place in the U.S. (it's attached to the seabed). In Mr. Burton's letter the factor determining whether or not a dynamically positioned special purpose vessel (or any OCS facility) engaged in OCS activities, is a point or place in the U.S. for Customs' purposes, is whether or not the unit is "in any manner connected to the ocean floor".

A copy of Mr. Burton's letter w/attachments will be enclosed with the newsletter of each regular member. Associate members may obtain a copy be contacting the OMSA office.

The Coast Guard National Maritime Center has just released its NMC Policy Letter 04-01 dealing with Ratings forming part of the navigation or engineering watch. OMSA has already developed these programs for OSVs. This policy provides non-OSV vessel operators with guidance on developing STCW programs for their unlicensed deck and engineering personnel.

STCW requires that mariners be assessed in their ability to actually perform certain skills in addition to other assessments of the professional knowledge and understanding of specified competencies. The requirements for qualification as an RFPNW and RFPEW provide guidance about the practical demonstrations of skills required to qualify for these STCW certifications. Complete details are contained in National Maritime Center Policy Letter Number 04-01 and can be viewed on the Internet at http://www.uscg.mil/stcw/m-policy.htm

On April 4, 2001 the Eighth Coast Guard District reissued its policy on issuing temporary MMDs. This policy will greatly reduce the time-lag necessary for the issuance of initial documents. The notice was faxed to OMSA members. If you need the attachments pages please contact Ken Parris at OMSA and he will email them to you.

There's a very simple reason why there is an oil shortage in the United States: Nobody bothered to check the oil; we just didn't know we were getting low. The reason for the oversight is geographical. All the oil is in Texas, Oklahoma, Louisiana and Alaska. All the dipsticks are in Washington, D.C.

TThese articles are intended for information purposes only and are not intended to be a substitute for legal consultation with respect to any specific matter. For such opinion or advice, you should contact legal counsel. See your OMSA membership directory for the names of member firms.

The Supreme Court will hear what may possibly be one of the most important cases TO YOU and YOUR BUSINESS this session. The issue of whether OSHA or the Coast Guard has jurisdiction over worker safety on uninspected commercial vessels will be decided this session by the Supreme Court. The question has been litigated in state courts and Federal Appeals Courts over the years with differing answers. Some jurisdictions have ruled in favor of OSHA jurisdiction and some in favor of Coast Guard jurisdiction. This case is an appeal of a Fifth Circuit case from the Occupational Safety and Health Administration. The case involves the question of safety and occupational health jurisdiction over an uninspected commercial vessel operating in state waters. In 1997 an uninspected inland drilling barge owned by Mallard Bay Drilling suffered an explosion and fire that killed four workers and injured two. The Coast Guard took the lead in investigating the incident. OSHA asserted that it had jurisdiction in the case and cited Mallard Bay Drilling with violations of the OSH Act. Mallard Bay disputed OSHA's jurisdiction in the case. Initially a DOL administrative law judge ruled in favor of OSHA jurisdiction. On appeal the U.S. Court of Appeals ruled in favor of Mallard Bay Drilling that OSHA did not have jurisdiction. The U.S. Supreme Court has taken the case and will hear arguments as to the appropriate agency for jurisdiction in this matter. If OSHA wins in this case it will clearly have jurisdiction over every uninspected commercial vessel operating in U.S. waters. If you have uninspected vessels working for you, you are strongly advised to contribute arguments to OMSA for an amicus brief (friend of the court). OMSA will be working in concert with other interested trade associations. You do not want to give this authority to OSHA. For additional information contact Ken Parris at OMSA.

The United States Supreme Court made it easier for companies to require employees to use arbitration, rather than lawsuits, to resolve workplace disputes.

Employees who have signed arbitration agreements can be barred from suing in court over most civil rights, harassment and other employment claims. Even if they can plead that they were required to sign the clauses as a condition of employment. The ruling is the result of a lawsuit filed by an employee who, despite having signed an agreement to arbitrate, pressed his case over alleged harassment. At issue in the Circuit City Stores Inc. v. Adams case was whether the Federal Arbitration Act of 1925 makes arbitration clauses enforceable in federal court. The Supreme Court, however, determined that the law applies to almost all employment contracts, excepting only those involving transportation workers, including seamen and railroad employees.

Source: "About Management," McGlinchey Stafford, April 2001 Volume XIX Number 4

Stewart, a marine engineer hired by Dutra to maintain a mechanical system of the SUPER SCOOP, sustained injuries during a collision between the dredge and scow. Stewart filed suit under the Jones Act for negligence. Dutra filed a Motion For Summary Judgment, arguing that Stewart was not entitled to a remedy under the Jones Act because SUPER SCOOP was not a vessel as a matter of law. The district court granted Dutra's Motion For Summary Judgment and held that the SUPER SCOOP was not a vessel, and the U.S. First Circuit affirmed. The First Circuit based its decision on the Di Giovanni v. Traylor Bros., Inc., which involved a barge that had no means of self-propulsion except for positional movement, which could be achieved by manipulating its spud anchors. In Di Giovanni, the court held that if a barge or other float's purpose of workers assigned thereto for its shore enterprise are seamen only when the vessel is in actual navigation or transit.

Source: "For The Record," Mouledoux, Bland, Legrand & Brackett, Winter 2001

Reed, a long-haul truck driver for KLLM, injured his low back and left hip when he fell while exiting the cab of an 18-wheeler after an accident with two other vehicles. KLLM paid Reed state worker's compensation benefits from the date of the accident through December 28, 1997, when it terminated benefits upon learning that Reed failed to report previous back injuries.

Reed did disclose that in 1980, he sustained a herniated disc and underwent a cervical fusion and discectomy. However, he failed to disclose to his physicians and employer that he re-injured his neck and injured his low back and hip in a work-related fall from a riding lawn mower in 1988, for which he received constant treatment for three years. He also failed to disclose that on December 3, 1997, four months after the present accident, Reed fell from a ladder at home and received treatment from a VA Hospital because he was complaining of severe pain.

The Louisiana Third Circuit held that under these circumstances, the workers' compensation judge did not err in ordering a forfeiture of all workers' compensation benefits pursuant to La. R.S. 23:1208. The Court noted that evidence did not support claimant's contention that he was too confused or in too much pain to remember the 1988 accident and his subsequent injuries. KLLM, Inc. v. Reed, 2000 W.L. 1509965 (La. App. 3rd Cir. 2000)

Source: "For The Record," Mouledoux, Bland, Legrand & Brackett, Winter 2001

Most employers have equal opportunity policies prohibiting discrimination based on race, gender, religion, disability, age and national origin as well as anti-harassment policies covering all of these protected categories, including sexual harassment. While such policies are critical, employers must also be sure that workplace policies are consistently enforced and that documentation of employment decisions is clear and accurate. These lessons are brought into focus by the United States Supreme Court's recent decision in Reeves v. Sanderson Plumbing, Inc., No 99-356 (decided 6/12/2000).

Reeves was fired (and replaced by a younger worker) after a company audit revealed that he had made numerous errors regarding the attendance records of his subordinates.

Reeves filed suit against his employer under the Age Discrimination in Employment Act, claiming that his termination was based on his age. At trial, Reeves presented evidence suggesting that one of his supervisors had made age-related remarks, but none of these comments related to the termination.

The jury returned a verdict in Reeves' favor and awarded him $70,000 in lost pay and punitive damages, to which the District Court added $28,000 in front pay.

This seeming lack of age-related evidence troubled the Fifth Circuit Court of Appeals, which reviewed the jury's verdict. In a nutshell, the Fifth Circuit concluded that while Reeves had put on substantial evidence challenging the accuracy of his employer's reasons for discharge, he had not produced evidence showing that he was terminated because of his age.

The United States Supreme Court granted review and reinstated the verdict in favor of Mr. Reeves. According to the Supreme Court, a protected class employee is not required to offer direct evidence of discrimination. Rather, he need only produce evidence suggesting that the employer's stated reason for an employment decision (hiring, promotion, termination, etc.) is untrue.

The Reeves case is a cautionary tale for employers. If you are not consistent in the enforcement of work place rules and documentation of employment decisions, you may face significant exposure to discrimination claims.

Source: "Personnel points of Interest," Lemle & Kelleher, L.L.P., Winter 2001

Questions You Can and Cannot Ask Applicants

As employers attempt to hire the right candidates for job vacancies, there are a number of legal issues that need to be kept in mind. Employers who are unaware of these legal issues affecting interviews and the hiring process may subject themselves to serious liability. In particular, the Americans With Disabilities Act ("ADA") imposes many counter-intuitive restrictions that often draw subtle distinctions between lawful versus unlawful conduct.

This e-Advice is the first in a three-part series discussing the hiring process from a legal and a practical perspective. This e-Advice provides an overview of what employers can and cannot ask applicants during interviews and on job applications under the ADA. The two subsequent series e-Advices will discuss such topics as background and reference checks and requiring applicant medical examinations.

Before implementation of the ADA, employers were generally free to inquire about the physical or mental condition of applicants. For example, employers generally could ask applicants about medical conditions on employment applications. Additionally, employers often inquired about the physical or mental condition of applicants while checking their references. The ADA, however, now prohibits pre-job offer "disability-related questions." By prohibiting these questions, the ADA purposefully attempts to isolate evaluation of the applicant's non-medical qualifications from any consideration of the applicant's medical condition.

Questioning Applicants Under ADA Rules: Under the ADA, employers may not ask "disability-related questions" at the pre-offer stage. There are, however, a number of ways employers may permissibly evaluate an applicant's qualifications for the job. First, employers may ask about an applicant's ability to perform specific job functions. For example, an employer may state the physical requirements of a job (such as the ability to lift a certain amount of weight, or the ability to climb ladders), and ask if an applicant can satisfy these requirements. Employers may also ask about an applicant's non-medical qualifications and skills, such as the applicant's education, work history, and required certifications and licenses. Finally, employers may ask applicants to describe or demonstrate how they would perform job tasks.

Note that after a conditional job offer has been made to a candidate, the employer may ask disability-related questions, but the employer must do this for all entering employees in the particular job category in which a position is being filled.

What Is a Prohibited Disability-Related Question? The EEOC defines a "disability-related question" as one that is "likely to elicit information about a disability." This means employers cannot ask whether an applicant has a particular disability, nor can they ask even questions that are likely to illicit information about a disability. Likewise, employers may not make pre-employment inquiries about a disability on application forms or in background or reference checks.

An exception exists if an individual has a known disability that might interfere with or prevent performance of job functions. Imagine, for example, an applicant with a neck brace applying for a warehouse job requiring a substantial amount of heavy lifting. In this circumstance that applicant may be asked to describe or demonstrate how these functions will be performed, with or without an accommodation, even if other applicants are not asked to do so. However, if a known disability would not interfere with performance of job functions, an individual may only be required to describe or demonstrate how they will perform a job if this is required of all applicants for the position

Examples of Prohibited Application Form or Job Interview Questions

• Have you ever had or been treated for any of the following conditions or diseases? (Followed by a checklist of various conditions and diseases.)
• Please list any conditions or diseases for which you have been treated in the past 3 years.
• Have you ever been hospitalized? If so, for what condition?
• Have you ever been treated by a psychiatrist or psychologist? If so, for what condition?
  
• Have you ever been treated for any mental condition?
• Is there any health-related reason you may not be able to perform the job for which you are applying?
• Have you had a major illness in the last 5 years?
• Do you have any physical defects that preclude you from performing certain kinds of work? If yes, describe such defects and specific work limitations.

In addition to the above examples of prohibited questions, there are a number of other topics that employers should avoid during the hiring process. For example, employers should avoid questions concerning the applicant's history of absence from work due to illness. According to the EEOC, pre-employment questions such as "how many days were you absent from work because of illness last year?" are prohibited because they may reveal the existence of a disability. In contrast, employers may provide information on the employer's attendance requirements and ask if an applicant will be able to meet these requirements.

Employers should also avoid questions regarding the applicant's disabilities or impairments, as they would affect job performance. For example, questions such as "do you have any disabilities or impairments that may affect your performance in the position for which you are applying?" should be avoided. Such questions should not be asked even if the applicant is asked in a follow up question to identify accommodations that would enable job performance. While questions should not focus on an applicant's disabilities, employers may ask about the ability to perform specific job functions, with or without reasonable accommodation.

Questions regarding applicants' use of prescription drugs should also be avoided. Questions such as "are you taking prescription drugs?" are not permitted prior to a conditional job offer. The reason for this prohibition is that the answers might reveal the existence of certain disabilities that require prescribed drugs.

Another topic to be avoided by employers engaged in the hiring process is the applicant's drug addiction and/or alcoholism. Questions such as "have you ever been treated for drug addiction or alcoholism?" may not be asked. The ADA protects people addicted to drugs who have been successfully rehabilitated, or who are undergoing rehabilitation, from discrimination based on drug addiction.

A final example of a topic to be avoided in interviews and on job applications is the applicant's history regarding workers' compensation. For example, "have you ever filed for workers' compensation insurance?" may not be asked. An employer may not ask about an applicant's workers' compensation history at the pre-offer stage, but may obtain such information after making a conditional job offer. Such questions are prohibited at the pre-offer stage because they may reveal the existence of a disability. In addition, it is a violation of the ADA not to hire an individual with a disability because of speculation that the individual will cause increased workers' compensation costs.

Questions that May be Asked on Application Forms or in Job Interviews: Employers may ask questions to determine whether an applicant will be able to perform specific job functions. Questions should focus on the applicant's ability to perform the job, not on medical conditions. For example, employers may attach a job description to application forms with information about specific job functions. Employers may also describe specific job functions to applicants.

If the applicant indicates that they can perform the essential functions with an accommodation, employers may ask how the applicant would perform the job and with what accommodations. Note that the ADA also prohibits an employer from refusing to hire a qualified individual with a disability because that person needs a "reasonable accommodation" required by the ADA.

Distinctions such as between asking whether an applicant can meet an employer's attendance requirements versus asking how many sick days an applicant had at a prior employer are subtle, but critical, to avoiding liability under the ADA. Training of interviewers to comply with the ADA and designing application forms and the hiring process to focus on performance of job functions, not medical issues and the like, can go a long way to minimize this exposure.

Source: McCalla Thompson Labor & Employment E-Newsletter, March 2001

On March 21, 2001 the U.S. Supreme Court ruled 7 - 2 in Egelhoff v. Egelhoff, WL 273198 (2001), ERISA preempts a Washington state statute requiring the designation of a spouse as the beneficiary of a benefit plan be revoked automatically upon divorce. This ruling should make interstate administration of plans easier, as it allows plan administrators to rely on the plan documents to determine the appropriate beneficiary. This ruling also may make it easier to argue other state laws affecting a plan's "system for processing claims and paying benefits" are analogous to those impacting distribution schemes and thus should be preempted.

Source: McCalla Thompson ERISA E-Newsletter, March 2001

Taxpayers of all income levels are using tax-advantaged Qualified State Tuition Programs (QSTPs) to save for a child or grandchild's college education. Today, most states sponsor QSTP savings plans. Many state programs do not require residency to participate.

QSTPs invest your contributions along with other people's contributions, mutual fund style. Earnings on QSTP savings plan accounts avoid federal income tax until they are withdrawn from the plan. When your beneficiary is ready for college, you can withdraw the funds to cover educational expenses at any accredited school, whether public or private, in state or out-of-state. The income portion of these withdrawals is taxed at the child's tax rate, which is likely to be lower than the donor's.

Most states give their residents tax breaks for investing in their plans. Generally, the income is tax free, not just deferred. Some states permit residents to deduct contributions to QSTPs on their state tax returns.

ESTATE AND GIFT TAX BENEFITS
A QSTP contributor may change beneficiaries or even take the funds back (subject to a penalty), which, under the ordinary tax rules, would cause the value of the account to be taxable in the donor's estate. But the law excludes QSTP contributions for the donor's taxable estate.

A QSTP account contribution is eligible for the $10,000 federal gift tax annual exclusion. A contribution that exceeds $10,000 in any one year is treated as if made over five years, meaning that a donor can use annual exclusions four years in advance.

EFFECT ON FINANCIAL AID
The federal financial aid form (FAFSA) treats QSTP savings plan accounts as assets belonging to the account owner - usually the parent or grandparent - and not the student. A grandparent-owned account does not even appear as an asset on financial aid applications. In addition, some states disregard QSTP accounts in calculating a student's state financial aid.

REGIONAL STATES OFFERING QSTPs
Florida - Florida College Savings Program - 1-800-552-4723
Louisiana - Louisiana START - 1-800-259-5626 ext. 0523
Mississippi - Mississippi Affordable College Savings - 1-601-359-3600
Alabama - Prepaid Affordable College Tuition - 1-800-252-7228
Texas - Texas Tomorrow Fund - 1-800-445-4723
Visit www.collegesavings.org/state-table.htm for updates

Source: "Tax Report" Wegmann Dazet & Co, August 2000

Operators participating in Central Gulf of Mexico Leaser Sale 178 Part 1 displayed increasing interest in the Gulf oil patch, as the sector continues to rebound from the oil and gas price slump that shook the industry in 1999.

Spurred by record high natural gas prices, blocks in the shallow waters of the Gulf to 199 meters received the highest number of bids.

E&P company's interest in shallow water blocks bodes well for the jack up fleet. Utilization should continue to run high, as it has been for many months. The deepwater semi and drill ship markets likewise should benefit.

Source: "Gulf of Mexico Newsletter," OFFSHORE DATA SERVICES, April 2, 2001 Vol. 15, No 25

The Chamber of Shipping of America and the Marine Section of the National Safety Council (NSC) sponsor the Jones F. Devlin Awards. The awards are given to self-propelled merchant vessels, which, at the end of any calendar year, have operated for two or more years without a Lost Time Injury.

Receiving a 5-year award was the M/V Marian Hagestad. Receiving 4-year awards were the M/V Bill Andrews and the M/V Bull Calf. Earning 2-year honors were the M/V Caroline, the M/V Elizabeth Huger, and the M/V Joseph Merrick Jones.

Source: "Canal Barge Company, Inc.," Spotlight 2000

The Six A's of Handling Angry People -

1) ASSESS the situation while you let the other person "tell their story." After listening for a few moments, you may be ready to interrupt with a logical solution. However, the little kid does not want to hear from you yet! Quite often, angry people just want you to listen to them - even if you can't necessarily fix the problem or "make things right."

2) ACKNOWLEDGE there is a problem. Use active listening skills and give this person your undivided attention. It is important to validate the angry person's perception of the situation, even though your viewpoint may be different from theirs.

3) AGREE when you can. You do not have to agree on who is right or wrong. You are simply agreeing there is a problem. It is usually difficult to stay angry with someone while they are agreeing with you!

4) APOLOGIZE to the extent you can. In a customer service situation, you will apologize because it is the professional thing to do. When dealing with angry co-workers, family and friends, it is not your responsibility to apologize for things that are not your fault or not within your control.

5) ACT within your authority. In a customer service situation, it is part of your job to "make things right" or find someone who can. You cannot always fix things for your family and friends. However, you can offer your support and understanding.

6) ASSESS AGAIN. At some point after the conversation is completed, when you can quietly reflect, ask yourself how satisfied you were with the outcome. How did you handle things? What did you say or do that helped? Did you make the problem worse? What would you do differently next time? (There will be a next time!) Assessing the situation when you are not under pressure will help you prepare and decide what to say or do in the future when similar situations arise.

Source: "Louisiana Association of Business & Industry," LABI Enterprise, Vol. 25, No. 1 March 2000

GALLIANO - A vessel built in Lafourche Parish has become somewhat of a celebrity lately. The C-Commando, a 220-foot submarine-support vessel on charter with the U.S. Navy, is assisting in the search and recovery effort for the Japanese fishing vessel Ehime Maru that was accidentally sunk by the submarine USS Greeneville Feb. 9. Built in 1997 by Galliano-based Edison Chouest Offshore LLC, the C-Commando is one of four Chouest-built vessels that provide submarine support for the Navy.

Stationed in San Diego, the C-Commando was the only vessel able to provide deepwater support services in the area to the Navy when the incident happened.

Source: "Bayou Oil & Gas Review," Matt Gresham, Bayou Business Review, March 5, 2001

The high cost of oil, the American economic boom and the environmental attractiveness of natural gas have combined to boost demand. Experts say the annual domestic demand for natural gas will hit 30 trillion cubic feet by 2010, up from 22 trillion cubic feet in 1988.

Natural gas industry officials say that will severely tax the pipeline system that delivers their product.

But last year, first oil, then gas prices started to climb sharply. Now major companies such as Exxon and independent producers such as Anadarko Petroleum are awash in cash, providing a ready war chest for exploratory drilling and bringing reserves into production.

Source: "Sunday Money," The Times Picayune, February 25, 2001 Section F-3

The PETROBRAS XXXVI sank off the coast of Brazil last week following a series of explosions in one of the FPS's pontoons. The accident claimed the lives of 11 workers and the oil and diesel on board have caused some concern in regards to the possible impact that the leaking hydrocarbons could have on the environment. Fortunately, recent MMS and USCG actions indicate a readiness to move forward with FPSO development in the U.S. Gulf.

There has been a surge of interest in the past 12-18 months to obtain SOLAS certification as well as other IM0 certifications required to unable U.S. domestic offshore service vessels to work overseas. This has had an effect on existing vessels as well as those under construction. SOLAS and MARPOL requirements have been somewhat of a mystery to the traditional Gulf of Mexico operators as well as to many Gulf Coast shipyards. To venture into the international market requires that the mystery be solved, both for new as well as some of the existing vessels. The catalyst has been the International Tonnage Convention of 1969, which causes certain types, and sizes of vessels to be snared by SOLAS which would have otherwise been exempt from these requirements Under the U.S. National Tonnage admeasurement system.

If you think you are an existing vessel owner who could not possibly have a problem with SOLAS just the because your OSV was built in 1982, is 299 U.S. gross tons and has a valid COI to go anywhere in the world, consider this scenario: You have always operated in the Gulf of Mexico. You get a contract for your vessel to work in Brazil and so you go get an International Tonnage Certificate from ABS, you find that even though your U.S. National Regulatory Tonnage is still 299, your ITC gross tonnage is 750. As far as U.S. Authorities are concerned, you are good go foreign; you don't need SOLAS or MARPOL? nor do you? The answer is, you do. At least you do if you want to want to work in Brazilian waters.

In spite of International Convention, if you remain working in Brazilian waters, you will have to obtain SOLAS and MARPOL certificates based upon your ITC gross tonnage. In actual cases were this problem has occurred, it has been possible to survey and modify the vessels to comply with the IM0 requirements. This may or may not be an expensive process, depending upon when and how the boat was built, but in any case, it is much less costly to do the work in Houma or Morgan City than in Recife.

Here is another example: You decide to undertake construction of two load line only utility vessels. They are 99 U.S. National gross tons. They are also 165 feet in length and have a U.S. Registry Tonnage of 510 gross tons. Since you have a contract to operate between several offshore platforms and Fourchon, you build the boats to USCG requirements with wood joiner work in the accommodation. A year after putting the vessels in service you have an opportunity to go to work in Mexico. The USCG says that you are okay as long as you are on a "foreign domestic" voyage in Mexico. Everything is fine, right? Wrong. Your potential charterer will only accept your vessel if you have valid SOLAS and MARPOL certificates. You then discover that although your class society has issued your load line certificate, you can't get SOLAS or MARPOL from them because your vessel is not classed. You consult your Naval Architect and find out that your route to certification is through the USCG, and for starters, that beautiful wood panel accommodation has to be ripped out? Lacking time, never mind the resources, you are disqualified from the bid. In fact, if these vessels had been built with IM0 in mind, the only change you may have had to make would be to trade life floats for inflatable liferafts, unless the charterers also requires the vessels to be classed.

If you are an existing or potential owner/operator of an oilfield service vessel and you are contemplating foreign employment, come to the Spring General Membership meeting in Lafayette and we will try to shed some light on the subject for you. The Alternate Compliance Program (ACP) and its possible application to OSV's will also be discussed. Please bring your questions.

Source: Skip Smith, American Bureau of Shipping, March 2001

Editor's Note: Skip will be a featured speaker at the April Business Meeting to discuss this and other issues of importance to your business.

The safety of the thousands of mariners who travel the nation's waterways has always been the chief concern at NOAA, the nation's nautical chart maker. A recent exciting improvement to nautical charts has dramatically enhanced those nautical charts that mariners rely on.

Until now, charts were virtually out-of-date by the time they rolled off the printing press. This was due to limitations of technology and printing methods. Then they were sent to a warehouse to await sale, perhaps months or years later. NOAA and the Coast Guard were faced with continually sending out Notices to Mariners that mariners spent countless hours applying to "new" charts. As long as mariners were diligent the system worked, but it was a chore for everyone and the potential for errors was large.

Now, NOAA has developed a totally new system that ensures the charts are up-to-date with the information needed for safe passage. Thanks to computer-assisted cartography and just-in-time printing, charts are now printed "on demand" with all Coast Guard, NIMA, and Canadian Notices to Mariners fully applied. Mariners will no longer have to spend tedious hours updating new (but out-of-date) charts with error-prone hand corrections. All the information needed to be Coast Guard-compliant appears right on the chart. NOAA even applies additional corrections that they receive before they appear in the Notice to Mariners.

The digital chart files are updated weekly. Charts are printed from the updated files when ordered. It's as easy as that.

NOAA made other changes, too. The charts are now water-resistant, have easier to read colors, use more durable material, and have added new, useful information in the margin of the charts - tide tables, emergency telephone numbers, radio frequencies, and more so mariners sail safer. The new, up-to-date charts are being test marked in selected areas. A constantly updated list of available charts and participating sales agents is posted on the Internet at www.NauticalCharts.gov. Additional information on this program is available from NOAA at 1-800-584-4683 or send an e-mail to help@NauticalCharts.gov.

Source: David B. Enabnit, Technical Director, Office of Coast Survey, NOAA

The Second Injury Fund (SIF) is a state-administered program funded by insurers and self-insured employers which reimburses partial claims costs when an employee with a preexisting disability is hurt on the job. In this way, the fund encourages employers to hire employees with disabilities by accepting part of their workers' compensation liability.

To qualify for reimbursements under the SIF, the following conditions must be met:

• The employer must knowingly hire or retain an employee with a permanent partial disability. (Utilizing post-employment employee health questionnaires that comply with the Americans with Disabilities Act can help prove this.)
• The employee must sustain an injury on the job covered by workers' compensation.
• The job injury "merges" with the preexisting disability to create a greater disability than would result from the second injury alone.

A permanent partial disability is any permanent condition, whether congenital or due to injury or disease, which constitutes a hindrance or obstacle to obtaining employment or to obtaining reemployment. This includes conditions such as epilepsy, diabetes, arthritis, cerebral palsy, and arteriosclerosis. The employer must have actual knowledge of the preexisting permanent partial disability prior to the subsequent injury. If the employer does not know of the condition prior to hiring the employee, but has actual knowledge of it prior to the work injury, the employer can still be eligible for reimbursement from the fund. T.L. James & Co., Inc. V. State, Workers' Compensation Second Injury Board, 96-907 (La. App. 3 Cir. 2/5/97); 689 So.2d 603. The employer (if self-insured) or insurer must notify the board in writing within one year after the first payment of compensation or medical benefits of those facts, which may be required to determine reimbursement. The board may conduct an investigation and call a hearing. If the board finds the employer or insurer is entitled to reimbursement, the board will order payments to be made at certain intervals from the fund.

The employer or the insurer will be reimbursed from the SIF for all weekly compensation payments payable after the first 104 weeks of payment. Medical payments are also partially reimbursable, according to a schedule set forth in the Workers' Compensation Act.