The Marine Engineers’ Beneficial Association (MEBA) hereby files this
Association Grievance on behalf of all MEBA bargaining unit members adversely
impacted by the arbitrary and capricious CIVMAR-only liberty restriction directed by
MSC’s gangway up order effected on 21 March 2020.
Point-in-time assessments conducted by the WHO; CDC; NPHC; local Area
CDRs; host nations and local port authorities; as well as Navy and DOD, determined it is
not necessary to restrict liberty of civilian or military personnel to safeguard against
COVID19. Safe protocols were established by these entities and all other afloat and
ashore military and civilian personnel are allowed to comply with; except MSC
CIVMARS.
All of these local and national authorities are in a better position to judge the
circumstances of the threat of COVID19 ashore and they were accordingly entitled to a
wide berth in rendering their threat assessment determinations. Yet MSC unilaterally
increased their determinations and exercised an unlimited power that it does not retain in
this respect in detaining US citizens. MSC failed to articulate any explanation for its
actions which are not required by public necessity to safeguard against COVID19.
All military personnel, MSC Port Engineers, other MSC, Navy, DOD civilians,
contractors, and all other personnel across the MSC/Navy enterprise- except MSC
CIVMARS - working in the same vicinity aboard USS and USNS ships and ashore are
allowed to disembark and enjoy liberty after working hours.
All personnel that will be reporting to these ships continue to attend routine
training courses requiring employees to be transported from VA to NJ; a state which has
had more deaths from COVID19 than any other state besides New York (the epicenter of
the virus on the east coast).
Under any rational interpretation, the agency acted arbitrarily and capriciously in
the circumstances of this case. The agency did not rely on local, state, national, or
international threat assessments to conclude that conditions ashore are unsafe. In the
absence of any evidence to the contrary, we can only reasonably conclude that MSC
officials substituted their own judgment in deciding that conditions ashore are more
unsafe than determined by governing entities; but only for MSC CIVMARS.
The Union and our membership support liberty restrictions to ensure the safety of
MSC CIVMARS, as well as safe mission accomplishment, when applied uniformly to all
workers IAW our negotiated agreements. However, given the circumstances of this case,
there isn’t any rational basis for concluding that the agency did not act inconsistently,
disparately, arbitrarily, and capriciously which warrants payment of premium pay/liberty
restriction pay, IAW CMPI 630, CMPI 610, governing MOUs, our CBA, etc.
Although we are in a peace time state and not at war, some states and the U.S.
Government declared a state of emergency in response to COVID19 concerns. Stay at

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 home and shelter in place orders issued by governors and the U.S. President were put in
place to protect U.S. citizens, as well as prevent virus spread.
However, local, state, and the federal government, nor the orders they effected,
restricted civil liberties or due process entitlements for DOD civilian and military
personnel working aboard ships as MSC has done in directing a MSC CIVMAR-only
liberty restriction.
We fully recognize that during the ongoing national emergency, it is paramount
that the continued operation of the maritime transportation system in the face of the acute
and evolving threats posed by COVID-19 remain protected. Yet all other critical workers
vital to our government (to include USCG, Army Corps of Engineers, DOD civilian and
military personnel, etc.) remain unrestricted in their constitutional right to liberty; in all
likelihood because quarantine orders remain ultimately enforceable by local and state
officials.
The Union filed requests for information (RFI) requesting copies of the Agency’s
authority to treat MSC CIVMARS disparately by avoiding compliance with,
contradicting, and unilaterally raising the COVID19 threat assessment by effecting a
MSC CIVMAR-only liberty restriction aboard all MSC/Navy ships. We requested
information to determine if MSC CIVMARS are being treated disparately. We requested
copies of the authority issued to MSC to restrict MSC CIVMAR liberty without notice or
due process. Unfortunately, to date the agency has not provided the Union with even the
most basic details, in violation of the Statute (5 USC 71).
MSC's CIVMAR-only restriction continues to have a disparate impact on MEBA
members and does not appear to be within the exercise of sound administrative discretion
rendering it arbitrary and capricious. The limited situations contained in our numerous
MOUs and the CMPI do not allow for the imposition of arbitrary and capricious liberty
restrictions without the payment of premium pay/restriction pay.
The COVID-19 threat is the same for all individuals across the MSC and Navy
enterprises, regardless of status. However, the MSC directed gangway up order applies
only to MSC CIVMARS and not any other military or civilian personnel aboard ship.
MSC and MSC Area Commanders failed to work with their Fleet counterparts to ensure
consistency in application in violation of the Agency’s Quality Management System
(QMS) instruction.
The Agency contends that it directed the MSC CIVMAR-only gangway up order
suspending all leave and liberty in all ports to retain the integrity of a virus-free shipboard
environment. However, since all other military and DOD civilian employees, as well as
government contractors, are allowed to disembark these same MSC ships to enjoy liberty
at home with their loved ones, this contention is disingenuous.
All others working aboard these MSC/Navy ships are allowed to enjoy their civil
liberty to go to stores, pick up fast food, go ashore to exercise, as well as to perform other

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 necessary personal tasks such as refilling medications, purchasing personal hygiene
products, etc. All others working aboard MSC/Navy ships are allowed to return to their
homes and gain much needed respite from their work environment aboard ship; except
MSC CIVMARS.
The disparate imposition of the MSC directed CIVMAR-only liberty restriction
specifically authorized access to and departure from the ship by military and DOD
personnel, MSC staff, contractors, inspectors and others who are not tested and could be
infected but asymptomatic. These workers could obviously in turn, infect members
unfairly restricted aboard ship with the virus.
Maintaining social distance aboard ship is often not possible. Hence, the Agency
increased MEBA members’ risk of exposure by unlawfully restricting their movement
and preventing them from returning home to self-isolate and social distance away from
ship for up to sixteen hours (16) hours during their off duty hours.
MSC violated CMPI 610, CMPI 630, our governing MOUs, our CBA, and public
laws (the US Constitution, 5 USC 71, etc.) in effecting what can only be deemed as the
rule of martial law in directing MSC CIVMARS to remain restricted aboard ship.
The agency unlawfully bypassed the Union and dealt directly with MEBA
members in directing its MSC CIVMAR-only gangway up order in violation of 5 USC
71. The MEBA learned of the liberty restriction from MEBA members on 22 March 2020
which constitutes a blatant unfair labor practice.
Had the Union been properly notified, it would have proposed that appropriate
exceptions to the immediately directed gangway up order be allowed for MEBA
members to avoid having their vehicles towed from pier parking lots, running out of daily
medications, to obtain personal hygiene products, to allow for trips to on-base NEX, etc.;
as well as sought to have the restriction applied to all personnel working aboard ship to
ensure that a genuine virus-free space could be maintained.
Members that have PTSD and are due for medical evaluation and treatment are
having a very difficult time adjusting to the disparate liberty restriction yet their request
for leave and liberty is denied. This health concern raised by the Union and our members
remains unaddressed by the Agency; which now causes concerns for members’ safety.
Subsequent to MSC’s directed gangway up order, the Agency implemented a
directive requiring that all workers aboard ship wear face masks to safeguard against the
virus. However, it failed to provide this necessary PPE to MEBA members. Considering
that only MSC CIVMARS were restricted from going ashore, they could not purchase
masks. Hence, the agency left members aggrieved requiring them to cut up pieces of
clothing to create a face mask in an attempt to protect themselves from this invisible
threat to their life. This violation of our CBA was raised to MSC and it remains
unaddressed and unresolved.

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 The Agency may restrict CIVMAR liberty in unsafe conditions without entitled
premium pay/liberty restriction pay. But if the restriction is not due to unsafe conditions
(that is, is arbitrary and capricious), the shore-liberty restriction still stands, but MSC
CIVMARS are entitled to premium pay/liberty restriction compensation pursuant to the
parties’ negotiated agreement.
The parties adopted this private-sector shore-liberty practice to prevent restricting
liberty for either arbitrary or financial reasons. Applying the agreement’s arbitrary and
capricious standard, it is clear that the Agency failed to show that conditions ashore were
more unsafe for CIVMARS but not for other individuals – military or civilians- working
aboard these MSC/Navy ships. Therefore, the Agency violated the agreement in failing to
pay MEBA members premium pay/liberty restriction pay.
The MEBA contends that the MSC directed CIVMAR-only gangway up order
violated MEBA members’ liberty interests under the Fifth and Fourteenth Amendments
to the U.S. Constitution. Our CBA requires the Agency to adhere to all governing laws;
to include this Supreme law.
Congress's authority to make rules for the government and regulation of the
armed forces under the constitution, given its plain meaning, indicates that the term "land
and naval forces" includes only members of the armed forces; not civilians
accompanying service members of the armed forces. Hence, MSC exceeded its authority
in depriving US citizens/MEBA members the right to liberty that the constitution
provides. MSC stripped MEBA members of their entitled protection and procedural
safeguards provided by the constitution.
At times governmental action involves an invasion of liberty that is neither so
gross nor so clear that a court can confidently declare it substantively out of bounds.
However, MSC does not retain the right to strip US citizens of their right to liberty
without statutory authority. The Fifth and Fourteenth Amendments’ applicability does not
exclude applicability to these MSC/Navy vessels or to MSC CIVMARS. MEBA
members are entitled to the equal protection of all our laws, including the Fourth and
Fourteenth Amendment.
Courts have reviewed even presidential claims of military necessity and held them
insufficient to override constitutional rights insisting that military power to detain
civilians remains subordinate to the courts and the safeguards of the Bill of Rights.
MSC’s directed CIVMAR-only gangway up order restricting liberty is not only
inconsistent with the avowed purpose of military intervention – the suppression of
disorder – but also conflicts with federal and state constitutions.
In the current "war on COVID19,'' MSC has claimed emergency powers that
exceed by very large margins - indeed, by light years - the executive powers accepted as
necessary and legitimate by the US Constitution. The emergency powers MSC claims are
not normal, even for a situation of national crisis.

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 MSC metaphorically contends we are at war with a virus. However, even under
wartime conditions, protection against the risk of unjust incarceration requires the robust
procedural safeguards of the Bill of Rights; and threats to safety, even when convincing,
could be less important than the dangers of overreaching by a well-intentioned but
overzealous manager.
Even if our country was in a wartime state, a state of war is not a blank check for
MSC when it comes to the right to liberty of US citizens. Unless Congress acts to
suspend civil liberties, the Great Writ of habeas corpus assures an important judicial
check on management’s discretion in the realm of detentions; particularly the detention of
civilians.
MSC abused its authority in curtailing MSC CIVMARS’ liberty which is so
sufficiently serious that we require a clear statement that legislation approved of MSC’s
egregious, disparate, arbitrary and capricious actions. The principal objection to the
Agency’s claims is not that they are factually implausible but that the benefits of judicial
deference come at a potentially staggering cost - placing individual liberty in the hands of
a single entity; COMSC.
There is no basis to dispute the validity of the MEBA’s contention that it is
disingenuous for MSC to contend that it is safe for all other military and civilian
personnel to enjoy their civil liberty ashore; but not MSC CIVMARS. It would be
difficult for the armed forces to justify such a rule of almost unfettered discretion; let
alone a lone organization – that being MSC.
CIVMARS are expected to go above and beyond what is expected of all other
federal employers on a daily basis. They and their families make selfless sacrifices during
long, dangerous deployments to remote parts of the world, in belligerent, hostile waters.
However, they should not be expected to endure an arbitrary and capricious deprivation
of liberty; which is a very serious abuse of authority.
As remedy, the Union requests that every MEBA member be provided restriction
pay for all off-duty hours where they were left aggrieved by MSC’s directed CIVMARonly gangway up order liberty restriction. We reserve the right to supplement this
Association Grievance if/when the Agency responds to our requests for information.
Please do not hesitate to contact me on any matter. Thank you.
Regards,

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