August 7, John Todd Vice President United Grain Corporation 900 Washington Street Suite 700 Vancouver, WA Dear Mr.

Transcription

1 Grain Inspection, Packers and Stockyards Administration Office of the Administrator 1400 Independence Ave. SW, Mail Stop 3601 Washington, D.C Voice Fax Hotline August 7, 2014 Vice President United Grain Corporation 900 Washington Street Suite 700 Vancouver, WA Dear Mr. Todd: This responds to the United Grain Corporation s (UGC) daily requests that the Federal Grain Inspection Service (FGIS) provide inspection services if the Washington State Department of Agriculture (WSDA) does not do so. In a letter dated July 3, 2014, I informed you that the Grain Inspection, Packers and Stockyards Administration (GIPSA) will conditionally withhold inspection services because of safety concerns. The letter also stated that [u]nder 7 C.F.R , UGC may take corrective action or demonstrate that there is no basis for withholding inspection services. By letter dated July 5, 2014, you stated that UGC s requirement is to provide a safe facility. GIPSA does not dispute that UGC s facility is safe; however, 7 C.F.R (b)(1) requires that the grain be accessible and states that grain is not accessible if it is offered for official services (iii) under conditions prescribed in the instructions as being hazardous to the health or safety of official personnel. Conditions are not limited to the UGC facility where the grain is located, but also include access to the facility i.e., the ability to enter and exit the Port of Vancouver safely. By letter dated July 7, 2014, UGC offered transportation options for FGIS inspectors to access the facility. While I appreciate UGC s efforts to provide a safe mode of transportation to its facility, I am responsible for [f]urnishing each [GIPSA] employee with a place of employment which is free from recognized hazards that are causing or likely to cause death or serious physical harm. GIPSA Directive , Safety and Health Program, 6.a(1). Additionally 3 of GIPSA Directive , Workplace Violence Prevention and Response, states that GIPSA will make every effort to prevent violent incidents from occurring, and will not tolerate violence, intimidation, or other threatening behavior. As such, it my responsibility to determine whether FGIS inspectors will be able to conduct grain inspections at the Port of Vancouver in an environment that is free from violence, intimidation, other threatening behavior, and hazards that are likely to cause death or serious physical harm.

2 2 Page I reviewed the complaint and administrative charge from the National Labor Relations Board (NLRB) and the reports from USDA safety experts, the WSDA, and the Washington State Patrol (WSP) regarding the safety situation surrounding access to the UGC facility in the Port of Vancouver. Based on these documents, I have determined that current situation at the Port of Vancouver does not ensure that FGIS inspectors will have safe access to the UGC facility to conduct grain inspections for reasons stated below. USDA is currently conducting a full safety assessment and a risk mitigation plan. I will reassess the safety situation after reviewing the assessment report and the risk mitigation plan and determine whether FGIS inspectors can safely access the UGC facility with appropriate risk mitigation measures in place. I expect the report and mitigation plan to be ready within the next several days. On February 27, 2013, UGC locked out its workers belonging to the International Longshore and Warehouse Union (ILWU) at its Port of Vancouver facility. Since then, ILWU has maintained a picket line outside of the UGC facility. The reports I reviewed documented numerous incidents that raise significant safety concerns. 1. According to USDA safety experts, since March 2013 the Vancouver Police Department responded to 161 calls for service at the Port of Vancouver and filed 77 reports. These incidents resulted in the citation or arrest of 23 individuals, with all but one arrested individual convicted. 2. According to NLRB s Order Consolidating Cases, Consolidated Complaint and Notice of Hearing (NLRB Order), dated February 28, 2014, UGC charged ILWU with unfair labor practices on March 13, 2013, April 25, 2013, and May 3, In the NLRB Order, the General Counsel of the NLRB alleged that ILWU, in conducting its picket line outside the gate to UGC s facility impeded and blocked the Employer's managers', security personnel's, and vendors' entrance to and exit from the Employer's facility on multiple occasions in March and April The General Counsel alleged several incidents that raise safety concerns including: Physically assaulting an UGC vendor's driver in his truck as he sought to exit the UGC facility; Physically striking a security officer in the back of the head and knocked his hard hat off his head as he walked along the rail tracks at the UGC facility; Throwing rocks at a security officer while he was working at the UGC facility; and Shining large spotlights into vehicles carrying UGC s managers and security personnel as they sought to enter and exit the UGC facility,

3 3 Page thereby blinding the drivers as they attempted to drive and causing permanent eye injury to a security officer; and Recklessly chasing the bus transporting UGC personnel. 3. According to UGC s Charge Against Labor Organization or its Agent, filed with the NLRB on May 28, 2014, UGC alleged that ILWU, by its officers or agents, threatened and/or attempted to harm United Grain's managers, employees, vendors and/or service providers by: throwing rocks at United Grain's managers, employees, vendors and/or service providers at United Grain's facility; harassing managers, employees, vendors and/or service providers at events outside of United Grain's facility; following one of United Grain's managers at an off-site location and then impliedly threatening this manager by displaying a Bowie-type knife approximately 7-8 inches in length and making a cutting motion across his own neck within the manager's view; and, on or about May 21, 2014, by confronting a manager who was picking up his son from day care, telling the manager that the individual's wife is the son's teacher and the manager needs to find a new day care and not to come back to this day care. UGC alleged that these incidents occurred within six months prior to May 28, WSDA inspectors expressed concerns about their safety when they entered the Port of Vancouver to conduct inspections for UGC. They documented numerous incidents when picketers verbally harassed or threatened them and/or impeded their vehicles in August 2013 when they were not receiving law enforcement escort. 5. WSDA reported several incidents within the last month when its personnel raised safety concerns. On June 24, 2014, a WSDA employee reported that a picketer hit his truck while he was exiting the port. On July 5, 2014, a WSDA employee was concerned for his safety citing the Vancouver Police Department and WSP s difficulty in controlling the picketers. On July 6, 2014, a WSDA employee reported that picketers threw gravel at his car. On July 6, 2014, a WSDA employee reported a large crow[d] out of control and he felt concern for his safety. 6. USDA safety experts concluded that sites assessed have measures in place to minimize the risk of an unsafe work enivironment to an acceptable level thus making the sites suitable for the performance of official duties by State

4 4 Page and Federal grain inspectors only if the Port of Vancouver enforces the rules of conduct it has implemented (emphasis added). The USDA safety experts concluded that the Port of Vancouver has not been enforcing its rules of conduct. In your letter dated July 7, 2014, UGC offered several transportation options for FGIS inspectors to access its facility in response to GIPSA s safety concerns. These options include bus, helicopter, water taxi, and escort by private security paid for by UGC. I considered each of these options and determined none of them ensure that FGIS will have safe access to the UGC facility at this time for reasons explained below. As I noted earlier, I will reassess the safety situation after reviewing the full safety assessment report and the risk mitigation plan and determine whether FGIS inspectors can safely access the UGC facility with appropriate risk mitigation measures in place. Bus: Transport by bus would require the inspectors to ride the bus to the port with unarmed security who are not law enforcement. The Port of Vancouver allows the bus to use only Gate 2 to enter the UGC facility. WSDA reported safety concerns regarding this bus service and UGC s charge against the ILWU before the NLRB and the NLRB Order include several allegations of incidents that posed safety risks. According to WSDA, bus transportation does not address the vulnerability of inspectors to potential rapidly escalating crowd dynamics and is susceptible to being blocked by picketers and/or vehicles while attempting to enter Gate 2. The WSDA cited an incident on February 26, 2014 when picketers blocked access to Gate 2 and even though the WSDA personnel had WSP escort, additional law enforcement was called in to disperse the crowd to allow WSDA personnel entry to through Gate 2. In addition to the allegations in the NLRB Order described above, the General Counsel of the NLRB also alleged that the ILWU picketers threatened the physical safety of UGC personnel and their families on numerous occasions. Based on UGC s charge against ILWU filed with the NLRB, it appears that the picketers continued to threaten and/or attempt to harm UGC personnel until at least as recently as late May of this year. Although the WSP UGC Site Security Assessment concluded that the bus service was safe and effective and recommended that the WSDA employees use the bus service, it appears that it was not aware of the incidents in March May, 2013 described by UGC when it made allegations against ILWU to the NLRB. 1 The WSDA reports, the reports by the USDA safety experts, and the WSP UGC Site Security Assessment indicate that there are days where there are no major safety concerns or incidents with vehicles entering and exiting the Port of Vancouver through Gate 2. However, these reports and UGC s allegations filed 1 On page 13 of the WSP UGC Site Security Assessment, WSP stated that [f]rom February [2013] to date, nearly 1400 crossings for this service have occurred with no incidents between ILWU picketers and the security vehicles crossing the picket line.

5 5 Page with the NLRB describe numerous situations where WSDA inspectors and UGC personnel and vendors were subject to physical harm and/or threatening behavior and verbal threats by picketers as they accessed or departed from the UGC facility. The unpredictable actions of the picketers that have resulted in significantly unsafe circumstances lead me to conclude, pending review of the full risk assessment and mitigation plan, that FGIS inspectors cannot be transported by bus because consistent safe access to the UGC facility cannot be ensured. Helicopter: The GIPSA safety expert noted that the landing site [for the helicopter at the UGC facility] is nestled among tall structures on all four sides by silos, conveyance systems or other buildings that potentionally pose safety issues during take offs and landings. The safety expert recommended that this option be used only if deemed appropriate upon completion of a full safety assessment and risk mitigation plan. Until the fuller review is completed, I would not be able to fulfill my responsibility to ensure a safe working environment for GIPSA employees. Water Taxi: Transporting inspectors to the elevator by boat would be unsafe and the least desirable means, due to a foot ladder over the water the length of which depends on the tide that inspectors would be forced to ascend and descend to gain access to the facility. Climbing the ladder poses a significant safety hazard for the inspectors. Escort by Private Security: The NLRB Order alleged several incidents related to UGC s bus service which is escorted by private security. Given the unpredictability and potentially volatile situation with accessing the UGC facility by motor vehicle, I believe that law enforcement escort, rather than private security, is necessary to address any safety issues that may arise and to ensure safe access to the facility by ground transportation. This conclusion is tentative, though, as I await the full safety assessment and risk mitigation plan, I have been diligent seeking but unsuccessful in securing any law enforcement agency, including the WSP, able to provide ongoing escort for FGIS inspectors. In your July 7, 2014 letter, you also asserted that UGC s transportation options are equal or more secure than the method utilized by FGIS at Columbia Grain, where inspections have continued uninterrupted. The USDA safety expert also evaluated the circumstances at the Columbia Grain facility in Portland, Oregon. He concluded that: The Columbia Grain facility operated at the Port of Portland Terminal 5, in Portland, Oregon provided an efficient and safe means of entry and exit from the port facility during normal operations through a security staffed entry control point (ECP) isolated from other port operations. There was no disruption or delay of entry or exit by FGIS personnel, which is attributed to a number of factors including State and local laws and the management of the ECP into the port and grain elevator. The locked out workers have been restric[t]ed to a Box area that allows them to show their presence but does not allow them to hinder, obstruct, or otherwise delay any vehicle attempting to gain entrance or

6 6 Page exit the ECP. Thus the situation at the Port of Portland is significantly different than at the Port of Vancouver and does not present the same safety concerns for the FGIS inspectors. For reasons stated above, I have determined that GIPSA will continue to conditionally withhold official inspection services at the UGC facility in Vancouver, Wahington, because the current safety situation at the Port of Vancouver does not ensure that FGIS inspectors will have safe access to the facilty. I will review the situation again upon receipt of the full safety assessment and risk mitigation plan. Finally, you inquired about the use of the National Exception Program to allow official agencies from other geographical regions to provide official inspection services at the UGC facility. As I explained in my letter dated July 17, 2014, the National Exception Program is not available at export port locations. Under the U.S. Grain Standards Act, official inspection at export port locations must be performed by official inspection personnel employed by the Secretary or other persons under contract with the Secretary. 7 U.S.C. 79(e)(1) (emphasis added). Official agencies and their contractors are neither employed by the Secretary nor under contract with the Secretary. Thus official agencies would not be able to provide official inspection services at the UGC facility in Vancouver. USDA remains committed to U.S. grain exports and understands and appreciates the importance of the orderly marketing and export of grain from the United States and will continue to seek resolution of this issue within the confines of the law and governing regulations. Sincerely, Larry Mitchell Administrator