Header, the Administration of the Honorable Lincoln C. Almond
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  2002 Signature
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April 17, 2002


In accordance with the provisions of Rhode Island General Laws § 43-1-4, I am transmitting herewith with my disapproval, 2002 - H 7133 Substitute A, As Amended, "An Act Relating to Public Utilities and Carriers - Duties of Utilities and Carriers."

This bill prohibits gas companies from allowing their employees to terminate, restore or activate gas service, or periodically test meters, unless those employees have: 1) gained relevant experience by working for a gas company for at least two years; and 2) been properly trained in the safe termination, activation or restoration of gas services- The bill also requires the Public Utilities Commission to establish and enforce a certification process for such training.

The safe activation and termination of gas services is a matter of great importance to all the citizens of this State. Gas utilities must use the utmost care in training their workers to ensure that gas services are delivered in a safe and effective manner. I support efforts to increase training for all people who deliver gas services to the public and would sign into law a bill that simply achieved that end. This bill, however, goes much further. As explained below, the bill's two-year gas company employment requirement would effectively prevent New England Gas ("NEG") from hiring utility contractors to terminate, restore or activate gas services, even though these workers already possess a high level of experience and training, simply because they did not acquire that experience by working at a gas company for two years. Moreover, as explained below, in its present form, the bill's two-year gas company employment requirement likely violates the National Labor Relations Act, 29 U.S.C. § 151, et seq. (the "NLRA").

The preemption doctrine of the NLRA prohibits states from regulating conduct that Congress intended to remain unregulated and to be left to the free play of economic forces. An employer's hiring of replacement workers during a strike has been expressly recognized as a protected economic right available to management. Charlesgate Nursing Center v. Rhode Island, 723 F. Supp. 859 (D.R.I. 1989). In Charlesgate, for example, the court struck down a Rhode Island statute that prohibited an employer from using an employee recruiting firm to recruit or hire workers to replace striking union employees. The court held that the statute restricted an employer's right to hire replacement workers during a strike. The United States Supreme Court has also made clear that a company has the federal right to hire qualified replacement workers during a lockout. Golden State Transit Corp. v. City of Los Angeles, 475 U.S. 608, 614-15 (1986).

A state statute, such as the one before me, is preempted when "it involve[s] attempts by a local, state, or federal governmental agency to regulate labor policy by putting a finger on the scales in favor of either labor or management." Van-Go Transport Co., Inc. v. New York City Board of Ed., 53 F. Supp. 2d 278, 290 (E.D.N.Y. 1999). A statute may not restrict a company's ability to hire replacement workers. A statute does so "when it infringes on such rights in more than a collateral way." Charlesgate, 723 F. Supp. at 865-66. A limited exception to this rule, and the one suggested to the legislature, is that of public safety. To avail itself of this narrow exception, the government must demonstrate "a substantial public health, safety or welfare concern sufficient to outweigh a party's interest in a federally protected right." Van-Go Transport Co., 53 F. Supp. 2d at 292. "To determine the validity of an asserted local interest, one must closely examine the articulated rationale behind the local interest." Id.

The public safety rationale here is severely undercut because the bill outlaws the use of even experienced plumbers, pipefitters and utility contractors trained in the provision of gas services simply because they do not have two years of experience with a gas company. Since plumbers and pipefitters regularly install gas services inside the home, they have experience activating and terminating such services as well as experience with the care and evaluation of gas-powered appliances. Moreover, the bill calls for a separate certification process by the PUC that would establish appropriate training criteria. The PUC should not be prohibited from certifying otherwise trained and qualified workers simply because they have not worked for a gas company for two years. No legitimate public safety concern is advanced by prohibiting these skilled tradespeople from activating, restoring or terminating gas services to consumers. Since the practical effect of this bill would be to restrict management's ability to replace locked out workers and since there is no countervailing safety rationale to support the two-year gas company employment requirement, this bill would likely violate the preemption doctrine of the NLRA.

In addition, this bill may also prevent NEG from performing critical functions long after its current labor dispute has been resolved. Even before the lockout, NEG (with the consent of its union) augmented its workforce with temporary workers to turn gas off during busy times of year. The bill would prevent NEG from using trained temporary workers to perform this function in the future, regardless of whether union workers were on strike. This would likely cause delays in terminating gas service as well as an increase in the price for such service.

This veto should not be construed as my approval of the existing lockout of gas company workers or the position of NEG in the pending contract negotiations. Those negotiations must conclude as soon as possible without interference by the government. Any bill addressing safety must do so without penalizing workers who are well trained and experienced, but do not meet an arbitrary two-year gas company employment requirement, and I urge amendment of this bill to do just that. For all these reasons, I disapprove of this legislation as drafted and respectfully urge your support of this veto.


Lincoln Almond