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Tuesday, October 22, 2019

Oil trade association files suit against California over law allowing increased union involvement

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By John Breslin | Aug 14, 2019

SACRAMENTO, Calif. (Legal Newsline) – Oil companies in California want a federal court to strike down state regulations that allow union representatives to be more involved in workplace safety.

The Western States Petroleum Association (WSPA), a trade association that represents exploration and refinery companies, filed suit July 9 against the state's Occupational Health and Safety Standards Board and the governor's office over the regulations introduced two years ago.

These regulations on safety management and accidental release "impermissibly and unconstitutionally interfere with the 'comprehensive regulation of industrial relations by Congress' through the National Labor Relations Act (NLRA)," according to the suit filed in the U.S. District Court for the Eastern District of California.

"Specifically, the regulations grant unions increased leverage and authority with respect to a matter that is already a mandatory subject of collective bargaining under the NLRA—workplace safety."

The plaintiff alleges that the state regulations are preempted by federal law.

One of the attorneys listed as representing the WSPA is Eugene Scalia of Gibson, Dunn & Crutcher of Washington, D.C., President Donald Trump's nominee for secretary of labor and the son of late U.S. Supreme Court Justice Antonin Scalia.

"The Regulations allow union representatives to determine which employees will participate in various safety reviews, and to participate themselves in the refinery’s safety programs, including development of specific safety recommendations," the suit states.

However, one legal analyst with expertise in labor law argues the preemption argument made by the plaintiffs ignores the provisions of the Occupational Safety and Health Act (OSHA).

The regulations, California Process Safety Management and California Accidental Release Program, are mirrors of what is already allowed under OSHA, said David Rosenfeld, a lecturer at Berkeley School of Law.

"Under these regulations, when inspections occur, there has to be a union representative present," Rosenfeld said, adding that this is covered by OSHA.

If federal law allows for a union representative to be involved in workplace safety, then there is no preemption argument, Rosenfeld said. California is among a number of states that have overlaid the federal law with its own occupational safety regulations.

Further, the Rosenfeld argues, a state cannot undermine collective bargaining agreements, which includes respecting the requirements of OSHA.

"This only affects unionized workplaces....why should they (the association) care except maybe to hide stuff from their workers?" Rosenfeld said, adding that it is also possible that the association filed suit because of the strength of unions among refinery workers and those involved in maintenance and construction at facilities.

The defendants have not filed an answer to the complaint yet.

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