Attorney General's Opinion
Attorney General Richard Blumenthal
November 22, 1994
Jesse M. Frankl
Workers' Compensation Commission
1860 Dixwell Avenue
Hamden, CT 06514
Dear Chairman Frankl:
This is in response to your letter dated June 30, 1994, in which you requested our opinion regarding whether the proposed Safety and Health Regulations, drafted pursuant to Conn. Pub. Acts No. 93-228 28(b), violate the National Labor Relations Act ("NLRA"). In particular, you were concerned that a Tennessee regulatory scheme, similar to that suggested by Conn. Pub. Acts No. 93-228, was found by the National Labor Relations Board ("NLRB"), Office of General Counsel, to be preempted by Sections 8(a)(2) and (5) of the NLRA. Goody's Family Clothing, Inc., NLRB Memorandum, Case 10-CA-26718 (September 21, 1993). It is this office's opinion that the regulations in question do not violate the NLRA. However, the regulations as currently proposed may need to be amended in certain respects after public comment to clarify their scope and operation. By way of introduction, it should be pointed out that 16 other states have regulations establishing safety and health committees, either pursuant to worker's compensation reform or state OSHA programs. Tennessee's regulations are apparently the only ones that have been challenged. Although the NLRB has issued an opinion finding that Tennessee's regulations were preempted by federal law, it did so on specific grounds concerning the nature of the interaction between the committees and the employer. According to the United States Supreme Court, the National Labor Relations Act "contains no express preemption provision" and "'consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.' Maryland v. Louisiana, 451 U.S. 725, 746 (1981)." Building and Construction Trades Council v. Associated Builders and Contractors of Massachusetts/Rhode Island, 113 S.Ct. 1190 (1993). The NLRB, in its review of the Tennessee safety committee program, identified two relevant tests for NLRA preemption of state laws. Goody's Family Clothing, Inc., NLRB Memorandum, Case 10-CA-26718 (Sept. 21, 1993). Under the first test, articulated by the United States Supreme Court in Brown v. Hotel Employees, 468 U.S. 491 (1984), state law is preempted if it "regulates conduct that is actually protected by federal law." Brown, 468 U.S. at 503. In those instances, "'[t]he relative importance to the state of its own law is not material...for the Framers of our Constitution provided that the federal law must prevail.' Free v. Bland, 369 U.S. 663, 666." Brown, 468 U.S. at 503.
In addition to direct conflict with the NLRA, State regulatory activity is preempted if it is "arguably within the compass of 7 and 8 of the Act." San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959).1 In Garmon, the United States Supreme Court reversed a California state court decision enjoining picketing by members of a labor union during a labor dispute. Although the NLRB had declined jurisdiction over the matter, the Supreme Court determined that the state's action created a "conflict with federal policy" in that it would allow "two law-making sources [the state and the NLRB] to govern." Garmon, 359 U.S. at 247. The Supreme Court noted, however, that states retain the power to regulate activities that are merely a "peripheral concern" of the National Labor Relations Act or which touch interests "deeply rooted in local feeling and responsibility." Garmon, 359 U.S. at 243-244. In its application of these preemption principles to the Tennessee regulatory scheme, the NLRB determined that the Tennessee laws directly conflicted with Section 8 of the NLRA. According to the NLRB, safety issues were "conditions of employment" and the safety committees were "labor organizations" dealing directly with and dominated by employers. Since there was a direct conflict between Tennessee's regulations and the NLRA, the state laws were preempted under Brown v. Hotel Employees, 468 U.S. 491 (1984), and the NLRB was not required to address the preemption test set forth in Garmon or "to engage in a Garmon balancing of state and local interests." Goody's Family Clothing, Inc., NLRB Memorandum at p. 16. Unlike the Tennessee laws examined by the NLRB in Goody's Family Clothing, Inc., the present proposed regulations, if amended as explained below, are not preempted under either a Brown or Garmon analysis. Section 31-----11 of the proposed regulations, entitled "Construction", reads as follows: A safety and health committee established under and operating in conformity with this regulation shall not constitute a labor organization within the meaning of Section 2(5) of the National Labor Relations Act or a representative within the meaning of Section 1, Sixth, of the Railway Labor Act.
The safety and health committees to be established by the proposed regulations, therefore, are not to be representational and are not to be labor organizations under the NLRA.2 Since the safety committees to be established under the proposed regulations are not to be "labor organizations", the state regulations establishing those committees do not conflict with an area "actually protected" by the NLRA (Brown, 468 U.S. at 503) and are not "arguably within the compass" of the NLRA. (Garmon, 359 U.S. at 245). The proposed regulations, therefore, are not preempted by the NLRA. Hence, we find the proposed regulations to be a valid and legitimate expression of our State's public policy as enacted by the General Assembly. At the same time, while Section 31-----11 of the proposed regulations provides a construction of the safety committee regulations which is beyond the preemptive power of the NLRA, the proposed regulations may require amendment to maintain internal consistency with the construction provided by proposed Section 31-----11 and to eliminate any possible conflicts with federal law. For example, clarification may be needed of the committees' "Membership and Composition" under proposed Section 31-----4 and the committees' "Duties and Functions" pursuant to proposed Section 31-----8, to conform those sections to the construction provided by proposed Section 31-----11. Such amendments can most appropriately be made after public comments have been received in response to the notice of the proposed regulations which must be published in the Connecticut Law Journal. Conn. Gen. Stat. 4-168. We would be pleased to work with you in this endeavor, enhancing the effectiveness of these measures.
Very truly yours,
1 Section 8(a)(1) (29 U.S.C.158(a)(1)) of the NLRA provides that it shall be an unfair labor practice for an employer:
It is also an unfair labor practice under Section 8(a)(2) (29 U.S.C. 158(a)(2)) for an employer:
Section 7 of the NLRA (29 U.S.C. 158(a)(1)) states:
2 Section 2(5) of the Act defines the term labor organization as follows: