BATH, Maine — In a letter Monday to Bath Iron Works (BIW) President Dirk Lesko, 72 Maine legislators say neither the company's designation as "essential" by Maine Gov. Janet Mills nor its designation as "critical infrastructure" by the Department of Homeland Security require them to remain open amid the coronavirus pandemic.
It also follows a letter from legislative leaders to Maine's Congressional delegation asking for assistance, after which the delegation sent three letters to the Navy asking for "guidance" regarding the shipyard operations during the pandemic. Each letter received a reply pointing to their designation as "critical infrastructure."
Legislators ask the company pointed questions about how employees will be treated should they take unpaid leave, and ask about reports that physical distancing in various settings at the shipyard is simply not enforced.
"Would BIW object to unannounced inspections of workspaces by state, local or federal health or safety officials to verify compliance with these or other health and safety imperatives," the letter asks.
Since the COVID-19 outbreak began, BIW has maintained that they must remain open due to those designations, and because of the company's contracts with the U.S. Navy.
Referring to the Department of Homeland Security website, the letter states, "[D]esignation as critical infrastructure does not bind BIW. Nor does it bind state or local officials. DHS explicitly states that its designation of critical infrastructure is only 'guidance, is 'not binding,' and 'does not compel any prescriptive action.' Rather, it is a 'decision support tool to assist state and local officials' as they balance 'public health concerns with infrastructure resilience.'"
"While the United States Navy has expressed the desire that you continue to operate, it has also acknowledged expected delays due to COVID-19," the letter continues.
Furthermore, legislators cite a letter some of them received from BIW General Counsel and Vice President Jon Fitzgerald last week that said the Department of Defense (DOD) has recommended BIW document and submit claims for the contractual impact of the pandemic and that the DOD will likely allow "an adjustment of cost, schedule or other terms" due to the pandemic.
Legislators ask BIW for specific information including, "What more specific DOD actions do you need to be able to order a temporary shutdown as the epidemic peaks in Maine."
They ask BIW to inform them of how many N95 masks and other personal protective equipment the company currently has.
The letter asks how BIW will provide for losses suffered by employees who contract the coronavirus, what burden of evidence will fall on the worker to access benefits, and what reassurance the company can offer employees who fear retribution for using their unpaid leave option.
Rep. Seth Berry, D-Bowdoinham, is the lead author of the letter, which is signed by 71 other Democrats and Independents.
He said Monday that the letter was prompted by "a disconnect between what we're hearing and what we know."
"The fact is that BIW does have the authority to shut down tomorrow," he said. "It's really just a matter of, do they expect to receive compensation. The Pentagon provided guidance that they will extend timelines and will pay for [employees'] paid leave for the COVID[-19] shutdown.
An April 9 memo from the Pentagon's acquisition office says the government will pay defense contractors for sick time or if healthy workers can't get to job sites due to the outbreak, Reuters reported.
The Pentagon will cover these costs "incurred as a consequence of granting paid leave as a result of the COVID-19 national emergency," the report states. The action would benefit defense contractors including General Dynamics, Reuters said.
Berry said he suspects the company's reluctance to close the shipyard stems from the desire to maintain a competitive edge, "to come in ahead of schedule" and is "maybe tied to executive bonuses, although I don't know."
Later Monday, BIW Vice President and General Counsel told NEWS CENTER Maine, "The suggestion that it's tied to executive bonuses is despicable, false and defamatory."
A short time later, Lesko sent a response to members of the state legislature saying, "In addition to our national defense mission and contractual obligations to the Navy, we have a commitment to protect the health and safety of our workforce in this time of national emergency."
"We remain open because the Department of Defense has decided that our country's defense industrial base must remain in operation," he wrote. "The DOD is charged with responsibility for national security and it is up to the DOD to decide whether we remain in operation. The Navy, as the cognizant DOD authority, has directed BIW to maintain normal schedules."
Lesko pointed to a March 29, 2020 letter from Assistant Secretary of the Navy James Geurts stating that BIW was expected to continue operations during the COVID-19 epidemic.
In response to legislators questions, Lesko wrote that BIW will continue to operate "unless and until the Navy authorizes a shutdown."
He lists a number of increased and added benefits for workers including company paid time for quarantine due to workplace direct contact with a COVID-19 confirmed positive case, and wrote that the company has "worked with our providers to broaden eligibility requirements for benefits, such as short-term disability" and to simplify the documentation required. Lesko said the company has maintained three months of health care insurance and other benefits for "more than 2,000 employees who have chosen to remain out of work with no risk to job security."
In response to the legislators' request for the number of N95 masks in its inventory, BIW referred to the 3,200 masks donated to MaineHealth and said the items in the inventory are necessary for continued operations. The company did not answer the question of how many masks they have.
Lesko said the company operates with oversight federal, state and local regulators, and would expect them to notify the company in the same manner they have previously before an inspection.
Neither Gov. Janet Mills nor any members of Maine's Congressional delegation immediately responded to requests for comments Monday.
At NEWS CENTER Maine, we’re focusing our news coverage on the facts and not the fear around the illness. To see our full coverage, visit our coronavirus section, here: /coronavirus