1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WESTERN STATES PETROLEUM No. 2:19-cv-01270-JAM-DB ASSOCIATION, a California 12 not-for-profit corporation, 13 Plaintiff, ORDER GRANTING USW’S MOTION TO

INTERVENE

14 v. 15 THE CALIFORNIA OCCUPATIONAL

HEALTH AND SAFETY STANDARDS

16 BOARD, together with its members, DAVID THOMAS, CHRIS 17 LASZCZ-DAVIS, LAURA STOCK,

BARBARA BURGEL, DAVID

18 HARRISON, and NOLA J. KENNEDY, in their official 19 capacities, and THE

CALIFORNIA GOVERNOR’S OFFICE

20 OF EMERGENCY SERVICES, together with its Director, 21 MARK GHILARDUCCI, in his official capacity, 22 Defendants. 23 24 On July 9, 2019, the Western States Petroleum Association 25 (“Plaintiff”) filed a complaint against the California 26 Occupational Health and Safety Standards Board, several of its 27 members, the California Governor’s Office of Emergency Services, 28 and its director (“Defendants”). Compl., ECF. No. 1. Plaintiff 1 seeks a court order declaring invalid and enjoining the 2 enforcement of certain California state regulations it contends 3 are preempted by the National Labor Relations Act (“NLRA”). See 4 Compl. ¶¶ 26-44. 5 Shortly thereafter, the United Steel, Paper and Forestry, 6 Rubber, Manufacturing, Energy, Allied Industrial and Service 7 Workers International Union, AFL-CIO, CLC (“USW”)—a union 8 representing workers in the American petroleum industry—filed a 9 motion to intervene.1 Mot. to Intervene (“Mot.”), ECF No. 11. 10 Neither Plaintiff nor Defendants opposed USW’s Motion. See Pls. 11 Statement of Non-Opp’n to USW’s Mot. to Intervene (“Pls. Non- 12 Opp’n”), ECF No. 18; Defs.’ Statement of Non-Opp’n to USW’s Mot. 13 to Intervene (“Defs.’ Non-Opp’n”). 14 For the reasons discussed below, the Court GRANTS USW’s 15 motion to intervene. 16 17 I. FACTUAL AND PROCEDURAL BACKGROUND 18 As part of a larger project to prevent accidental chemical 19 releases at petroleum refineries in California, the State 20 Legislature mandated that the California Occupational Health and 21 Safety Standards Board adopt Process Safety Management (“PSM”) 22 standards applicable to those refineries. Compl. ¶ 23. The 23 Board promulgated a PSM regulatory scheme known as the CalPSM 24 Regulation (“CalPSM”), 8 Cal. Code Regs. § 5189.1. Compl. ¶ 24. 25 The regulations are designed to protect refinery employees by 26

27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for November 5, 2019. 1 preventing industrial hazards. Memo. in Support of Mot. to 2 Intervene (“Memo.”), ECF No. 12, at 1-2. 3 In tandem, the Governor’s Office of Emergency Services, the 4 office in charge of promulgating regulations under the state’s 5 Accidental Release Prevention program (“ARP”), promulgated a new 6 regulatory scheme also applicable to refineries in California. 7 Compl. ¶ 25. The new regulatory scheme is known as the CalARP 8 Regulation (“CalARP”), 19 Cal. Code Regs. § 2735.1, et seq. Id. 9 These regulations are designed to protect the public and the 10 environment. Memo. at 1. 11 Both CalPSM and CalARP require “employee participation in 12 all [PSM and ARP] elements.” Memo. at 5. As such, an employee 13 representative must be designated. Compl. ¶ 29. The regulations 14 define the employee representative as “a union representative, 15 where a union exists, or an employee-designated representative in 16 the absence of a union that is on-site and qualified for the 17 task.” 8 Cal. Code Regs. § 5189.1(c); 19 Cal. Code Regs. 18 § 2735.3(t). The employee representative selected has rights and 19 responsibilities within the PSM and ARP processes. Compl. ¶¶ 31– 20 35. 21 Plaintiff alleges the employee-participation provisions of 22 CalPSM and CalARP directly regulate and interfere with labor- 23 management relations and thus, are preempted by the National 24 Labor Relations Act (“NLRA”). Compl. ¶¶ 38-44. Plaintiff also 25 alleges that the regulations, in effect, deprive WSPA’s members 26 of their federal right, under the NLRA, to be free from 27 government interference with the collective-bargaining process, 28 in violation of 42 U.S.C. § 1983. Compl. ¶ 56. 1 USW seeks to intervene in order to ensure its members 2 employed in these refineries remain involved in the CalPSM and 3 CalARP processes. Memo. at 1. 4 5 II. OPINION 6 A. Intervention of Right 7 1. Legal Standard 8 Under Federal Rule of Civil Procedure 24(a), a party 9 seeking to intervene as of right must (1) timely move to 10 intervene; (2) claim an interest relating to the property or 11 transaction that is the subject of the action; (3) be so 12 situated that disposing of the action may impair or impede the 13 movant’s ability to protect its interest; and (4) claim an 14 interest not adequately represented by the existing parties. 15 “Rule 24 traditionally receives liberal construction in favor of 16 applicants for intervention.” Arakaki v. Cayetano, 324 F.3d 17 1078, 1083 (9th Cir. 2003). 18 2. Analysis 19 a. Timeliness 20 USW filed its motion to intervene less than three months 21 after Plaintiffs filed their complaint. Neither Plaintiff nor 22 Defendants dispute the timeliness of USW’s motion. See Pls. 23 Non-Opp’n; Defs.’ Non-Opp’n. The Court finds the motion to 24 intervene was timely. See Citizens for Balanced Use v. Montana 25 Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011) (finding 26 motion was timely where proposed intervenor filed application 27 three months after plaintiff filed complaint). 28 /// 1 b. Proposed Intervenor’s Interest 2 USW has a significant, legally-protectable interest in the 3 outcome of this suit. A proposed intervenor must claim an 4 interest that is “protectable under some law” and bears a 5 “relationship . . . [to] the claims at issue.” Arakaki, 324 6 F.3d at 1084. The law under which a proposed intervenor claims 7 an interest need not “give [the] proposed intervenor any 8 enforceable rights [or] seek to protect any of their existing 9 legal rights.” California ex rel. Lockyer v. United States, 450 10 F.3d 436, 441 (9th Cir. 2006). The Ninth Circuit’s 11 “intervention caselaw has not turned on such technical 12 distinctions.” Id. But the claimed interest may not be an 13 “undifferentiated” or “generalized” interest in the outcome of a 14 suit. Id. It must be “direct, non-contingent, [and] 15 substantial.” Id. Furthermore, “[t]he relationship requirement 16 is met if the resolution of the plaintiff’s claims actually will 17 affect the applicant.” Id. at 398 (internal quotations 18 omitted). 19 USW has a direct, non-contingent interest in the suit. 20 Labor organizations have a legally-protected interest in the 21 outcome of a suit when employers challenge the validity of laws 22 and regulations establishing minimum labor standards that 23 protect union members. Allied Concrete & Supply Co. v. Baker, 24 904 F.3d 1053, 1068 (9th Cir. 2018) (union entitled to intervene 25 to defend state prevailing wage law against preemption 26 challenge). USW represents approximately 3,000 workers employed 27 by refinery operators in California. Nibarger Decl., ECF No. 28 11-1. It contends that a successful challenge to the CalPSM and 1 CalARP provisions requiring employee participation would weaken 2 its members’ involvement in the development and implementation 3 of refinery safety practices. Memo. at 10–11. Thus, USW 4 satisfies both the “interest” and the “relationship” requirement 5 for this element. 6 c. Impairment of Interests 7 The disposition in this action may impair USW’s ability to 8 protect its interests. The Ninth Circuit “follow[s] the 9 guidance of Rule 24 advisory committee notes that state ‘if an 10 absentee would be substantially affected in a practical sense by 11 the determination made in an action, he should as a general 12 rule, be entitled to intervene.’” California ex rel. Lockyer, 13 450 F.3d at 442 (quoting Berg, 268 F.3d at 822). 14 Plaintiff seeks an order invalidating and prohibiting the 15 enforcement of the CalPSM and CalARP regulations. Compl. at 14– 16 15. If Plaintiff prevails, USW and its members would be denied 17 the protections afforded by those regulations. USW has an 18 interest in the rights these regulations confer upon its 19 members. Thus, the Court finds that invalidating them would 20 impair or impede USW’s interest if it cannot intervene. See 21 Allied Concrete, 904 F.3d at 1068. 22 d. Adequacy of Representation 23 Ordinarily, “[t]he burden on proposed intervenors [to show] 24 inadequate representation is minimal, and [will] be satisfied if 25 they [can] demonstrate that representation of their interests 26 ‘may be’ inadequate.” Arakaki, 324 F.3d at 1086. But a 27 presumption of adequate representation arises in two 28 circumstances: (1) when the proposed intervenor shares the same 1 “ultimate objective” as one of the parties, and (2) when the 2 proposed intervenor is one of the parties’ constituents. Id. A 3 proposed intervenor can only overcome a presumption of adequacy 4 if it makes a “compelling showing” that the existing parties will 5 inadequately represent its interests. Id. 6 The Court finds that the presumption of adequacy does not 7 apply here. USW and Defendants do share the same ultimate 8 objective of seeing that the CalPSM and Cal ARP regulations are 9 upheld. However, when a constituent’s interests are “potentially 10 more narrow and parochial than the interests of the public at 11 large,” the constituency presumption does not apply. See 12 California for Safe & Competitive Dump Truck Transp. V. Mendonca, 13 152 F.3d 1184, 1190 (9th Cir. 1998). And the Ninth Circuit has 14 held that the interests of labor intervenors in protecting their 15 members are narrower and more parochial than California State 16 officials’ broad and more abstract interest in defending the laws 17 of the State. Id. Consequently, USW’s interests, as a labor 18 intervenor, are too parochial to trigger the constituency 19 presumption. 20 Absent a presumption of inadequacy, “[t]he burden on 21 proposed intervenors [to show] inadequate representation is 22 minimal.” Arakaki, 324 F.3d at 1086. The Court finds that USW 23 satisfied this minimal burden. As USW alleges in its 24 Memorandum, Defendants must consider the interests of the public 25 at large in crafting and subsequently defending these 26 regulations. Memo. at 12–13. As a result, they ultimately may 27 not adequately represent USW’s more specific interests in 28 defending its members’ degree of involvement in the development 1 and implementation of refinery safety practices. Thus, USW is 2 entitled to intervene. 3 B. Scope of Intervention 4 The Court has the discretion to place conditions on 5 intervention of right to prevent prejudice to the existing 6 | parties. Pac. Coast Fed'n of Fishermen's Ass'ns v. Gutierrez, 7 | No. 1:06-CV-00245 OWW GSA, 2008 WL 4104257, *7 (E.D. Cal. Sept. 8 2, 2008). Accordingly, USW’s Participation is subject to the 9 following conditions: 10 1. USW shall make every effort to focus on issues not 11 addressed by Defendants. At such time when the parties submit a 12 proposed case management plan, USW can propose a briefing 13 schedule under which Defendants’ merits briefs will be filed 14 before USW’s briefs. This will reduce duplication. Page limits 15 for the briefs will not be split between the parties. 16 2, Each party will bear its own costs and fees related to 17 the participation of USW in this matter. 18 19 Til. ORDER 20 For the reasons set forth above, the Court GRANTS USW’s 21 Motion to Intervene. Accordingly, USW’s Answer filed at ECF No. 22 11-3 is deemed operative. 23 IT IS SO ORDERED. 24 Dated: November 25, 2019 25 kA 26 teiren staves odermacr 7008 27 28