Discovering the Blacklist, ''This Will Go on Your Permanent Record''
By John Merriam
Not all fishing and shipping companies use dossiers on seamen asserting claims as a blacklist, but some do. The purpose of this article is to discuss the potential for blacklisting by use of files maintained by the Marine Index Bureau, and obtaining those files in discovery.
The Marine Index Bureau (MIB) is an information exchange located in the greater New York area. It collects and disseminates information on seamen suffering injury to member companies in the fishing and shipping industries. In exchange for receiving information from the MIB, member companies are requested to submit reports on seamen in their employ suffering injury or asserting claims. The MIB advertises itself as providing an ability to identify exaggerated, duplicative or fraudulent claims. But it also supplies a "pre-employment report". Some fishing and shipping companies routinely request a pre-employment report on all seamen applying for employment, regardless of injury or claim. In its Subscription Agreement, the MIB states: "The Member Company agrees that Claims Reports will be requested solely for the evaluation of claims or potential claims and for no other purpose." Then why pre-employment reports?
Blacklisting is defined, at least in this state, as making, "any statement or paper that will tend to influence or prejudice the mind of any employer against the person... seeking employment..." RCW 49.44.010.
Seamen are not entitled to workers' compensation and are required to bring claims, and sometimes lawsuits, if they are to receive redress for work-related injury. Employers are prohibited from retaliating against seamen for bringing such claims. Smith v. Atlas Off-Shore Boat Service, 653 F.2d 1057 (5th Cir. 1981). But some maritime employers have found a way around this prohibition by doing the same thing indirectly. The example most familiar to maritime practitioners is Pino v. Protection Maritime Insurance Company, 599 F. 2d 10 (1st Cir. 1979), a case where it was an insurance company that effectively blacklisted seamen who had brought claims for injury in the past.
The oil industry maintains or maintained an entity similar to the MIB called Industrial Foundation of the South to keep data on employees. Suit was brought against such practices under the successor statute to the Ku Klux Klan Act, 42 U.S.C. § 1985(2). Admiralty jurisdiction was not invoked even though many of the employees involved worked aboard off-shore oil rigs. Kimble v. D.J. McDuff, Inc., 623 F.2d 1060 (5th Cir. 1980).
In the past, the MIB did not limit the information it collected and disseminated to just injuries. Data solicited and distributed included whether or not the injured seaman filed suit as a result of the injury, the amount of settlement or verdict, the name and address of the seaman's attorney, and allegations of misconduct whether or not injury was involved.
Ten or twelve years ago this practitioner was retained by a union merchant seaman in connection with a refusal of employment based on the contents of his MIB file. The Seafarers' International Union (SIU) had recently contracted to man sixty-two military support vessels with unlicensed seamen. The SIU had abdicated on safeguarding principals of rotary shipping by allowing contracted companies to select seamen on the basis of "selectivity". "(S)electivity" in turn was based upon MIB files. These shipping companies were in effect using MIB information as a blacklist, with the tacit approval of the SIU. The MIB at first refused to provide the seaman with a copy of his file. After threat of suit, the MIB did release the dossier. It contained allegations of drug abuse, insubordination, venereal disease, sleeping on duty, disobedience to orders and other allegations that were unflattering, unsubstantiated and/or false. A confrontation ensued, during which the MIB was threatened with a lawsuit for defamation and blacklisting. It had been collecting and disseminating claims of misconduct based solely on reports from employers, whether or not those claims were ever reported to the Coast Guard, union or other agency, to say nothing of whether the claims were ever adjudicated. There was no opportunity for seamen to respond to claims, nor even to see what allegations were in their MIB files.
In exchange for being released from legal claims of blacklisting, the MIB changed its report on the seaman in question and promised to change its policies. All seamen were thereafter allowed access to their own files, ostensibly, and allowed to add their version of disputed events. According to subscription literature presently sent out by the MIB, it has abandoned the inclusion of misconduct claims altogether.
Even though the MIB has supposedly changed its ways, the question remains whether some employers, large fishing companies in particular, are still using the MIB files as their own blacklist based on prior claims for injury. The North Pacific Fishing Vessel.
Owners' Association, for example, gives or gave a twenty-five percent discount on MIB dues to member companies. Some of those companies make routine requests for pre-employment reports, and in turn submit reports, for every successive employment. Included in some of those reports sent to the MIB is the rehire status of particular seamen after every contract, regardless of injury.
Not surprisingly, defense counsel usually resist providing MIB information in discovery. Work product under FRCP or CR 26 is the usual objection.
Discovery of the MIB report is necessary to see what information has been reported, both to avoid blacklisting in the future by checking to see that the MIB is following its own guidelines, and to find out if a client has had an illness or injury in the past that you don't know about. Some clients do not remember all past injuries, and some are less than candid.
The work product rule has no application to documents prepared by the MIB, a non-party. It is difficult to see how defense counsel can assert a work product objection to MIB dossiers in light of the past promise by the MIB to release pre-employment reports to any seaman who so requests.
One of the more creative objections to providing MIB information is based on a claim of protection under a Coast Guard regulation, 46 CFR 28.80. That regulation requires only that commercial fishing vessels report injuries to some entity which collects this type of information, such as the MIB. It says nothing about MIB reports being shielded from disclosure to individual seamen litigating injury claims.
MIB information is not work product. It is recommended that maritime plaintiff practitioners incorporate a routine request for MIB information into standard discovery.
John Merriam is a sole practitioner in Seattle representing seamen on wage and injury claims.