May 5, 2016

Forging A New Course for National Oil Bargaining

Oil Banner

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As the new chair of the National Oil Bargaining Program (NOBP) I am orienting myself to the duties and responsibilities of the position and working on many issues affecting oil workers.

Some locations are effectively implementing the letters of agreement on fatigue and maintenance training and development that we negotiated in the 2015 round of National Oil Bargaining. Other locals are having problems enacting these letters. I am working extensively with the staff representatives and locals to address the roadblocks and overcome them.

Current Activities

Shell Oil Co. is proposing to end retiree health insurance benefits for new hires, so I am working with the Shell union council on analyzing data from the information requests.

I am also establishing close ties and getting more involved with the oil councils by attending their meetings and offering assistance. Having strong councils helps us in bargaining, address local issues and foster solidarity.

During 2012 NOBP negotiations the Tesoro council coordinated their bargaining strategy for over six months and engaged in mobilization strategies, rallies and actions to push Tesoro to bargain a fair contract. Their work paid off because in 2015 negotiations the company settled quickly.

Since we represent oil workers who are employed by multinational corporations, we must think and act globally, so I am coordinating with other international unions who share the same NOBP employers.

Proposing Shareholder Resolutions

This year we are presenting shareholder resolutions on lobbying practices at ExxonMobil, Tesoro and Chevron, as well as a health and safety resolution at Marathon Petroleum.

The resolutions focus on getting full disclosure from the oil companies’ on their direct and indirect lobbying activities and expenditures to determine if the lobbying is consistent with their expressed goals and is in the best interest of shareholders.

More disclosure on health and safety incidents is needed at Marathon.

NOBP Conference

The NOBP conference will happen July 12-13, 2016 in Pittsburgh. My office is mailing a call letter to the locals. Unlike previous NOBP conferences held in a non-bargaining year, this one will have fewer speakers and greater attention focused on bargaining and preparing for 2019 NOBP negotiations.

Discussions will center on implementing the 2015 NOBP pattern settlement and ensuring companies are adhering to previous letters of agreement negotiated over 50 years. We want to start now with bargaining preparations by developing a plan on how to address our employers this round.

Each round of negotiations is harder because of unfair trade and short-sided political legislation, so begin now to set aside funds every month to prepare for a strike in 2019, if necessary, and show the oil industry we are serious.

Kim Nibarger, Chair

National Oil Bargaining Program

knibarger@usw.org

USW Represents Workers’ Interests in Citation Appeal Meetings Between ExxonMobil, Cal/OSHA Over Torrance Refinery Blast

The USW is ensuring workers’ interests are represented during meetings between ExxonMobil and Cal/OSHA over the company’s appeal of 19 health and safety citations and penalties totaling $566,600 the agency issued to the company after its investigation of the February 18, 2015 explosion at the company’s Torrance, Calif., refinery. Four workers had minor injuries from the incident and eight were decontaminated afterward. The blast hurled debris and a fine white ash on nearby homes and cars.

The union filed party status so it could participate in the legal process and the appeal meetings between ExxonMobil and Cal/OSHA. These sessions focus on the agency’s reasons for issuing the citations and the amount of the penalty.

Kim Nibarger, chair of the National Oil Bargaining Program (NOBP), attended the first meeting along with ExxonMobil lawyers and Cal/OSHA attorneys and compliance officers. He said these informal meetings allow both sides to ask and answer questions about the citations. “I think the first meeting went well. The fact that everybody was there willing to have a discussion is always a good sign,” Nibarger said.

He said ExxonMobil and Cal/OSHA are analyzing documents regarding the incident. “It’s not unusual for these meetings to continue for several months or years,” Nibarger said. “The more serious the classification and expensive the citations, the more time it takes to discuss and resolve.” He said if all three parties—Exxon, Cal/OSHA and the USW—cannot reach a settlement on the citations and penalty, an administrative law judge (ALJ) has the final say. “As long as you make progress, the ALJ won’t step in,” Nibarger said.

Serious Violations

Cal/OSHA classified all but one of the citations resulting from the Feb. 18, 2015 explosion as “serious” because there was a realistic chance a worker could have been killed or seriously injured due to the company’s health and safety violations.

The agency also categorized six of the serious violations as being willful because during its investigation it found that Exxon failed to eliminate known hazardous conditions at the Torrance refinery and intentionally failed to comply with state safety standards.

How Blast Happened

According to Cal/OSHA, the Feb. 18, 2015 blast occurred because hydrocarbons from the fluid catalytic cracker (FCC) unit released into the electrostatic precipitator (ESP). The hydrocarbons ignited inside the ESP, causing the unit to explode. The FCC unit produces gasoline.

Advance Knowledge

Cal/OSHA’s investigation revealed the following:

“A 2007 safety review uncovered concerns about flammable vapor leakage in the ESP. Management knew of potential fire or explosion hazards as a result of the leakage, and failed to correct the danger.
“Exxon’s incident response team, which included ExxonMobil senior management, was aware of a leaking spent slide valve on the FCC unit before the accident occurred.
“The FCC unit had not been working properly for as many as nine years prior to the incident. There was no functional pressure transmitter and as a result, ExxonMobil was unable to monitor hydrocarbon pressure buildup in the unit.
“There was no written operating procedure for placing the FCC unit in hot standby, which is a state between startup and shutdown that can be compared to working on an idling car.”

“This blast likely would not have occurred had Exxon management acted upon the hazards it knew existed in its Torrance refinery,” Nibarger said. “Money is not a problem with this profitable multinational, so when management knows something is wrong with the equipment and infrastructure, it needs to make the necessary repairs and replacements.”

FCC Must Be Safe

Following the explosion, Cal/OSHA issued an order prohibiting Exxon from using the FCC unit until the company demonstrates the unit is safe to operate. PBF Energy, which agreed last September to buy the Torrance refinery for $537.5 million, wants the unit to be fully operational before the company takes over the refinery’s operations.

A PFB spokesperson said that the company expects the purchase of the Torrance refinery “to close in the second quarter of 2016, subject to customary closing conditions, regulatory approvals, and the refinery being restored to full working order.”

A short-lived power outage on March 16 caused a “large flaring event” at the Torrance refinery, delaying the restart process for the FCC unit.

Exxon requested the South Coast Air Quality Management Board to reschedule its March 19 hearing on the FCC unit to April 2. After hearing from Exxon officials, community members and workers at the April 2 public meeting, the board narrowly gave approval, by a 3-2 vote, for Exxon to exceed clean air standards in restarting its gasoline production.

However, the restart has to occur from 7 p.m. to 7 a.m. to minimize exposure, and the company has to notify residents at least 48 hours before the restart process begins. As of mid-April, Exxon had not restarted the gasoline-producing unit.

More Health & Safety Incidents, Citations, Penalties for ExxonMobil Torrance Refinery

After the Feb. 18, 2015 explosion at ExxonMobil’s Torrance, Calif., refinery near Los Angeles, more health and safety incidents occurred in the fall of that year at the refinery, with one incident resulting in another Cal/OSHA investigation, citations and penalties.

In response to the hydrofluoric acid leak at the Torrance refinery’s alkylation unit on Sept. 6, 2015, Cal/OSHA announced on March 4, 2016 that it issued citations to Exxon after it found the company did not repair faulty equipment for four years, exposing workers to possible serious injury or death. In this case, the agency proposed penalties totaling $72,120. Cal/OSHA investigators discovered the leak was related to a temporary clamp the company installed on a 3-inch nozzle flange following an earlier leak in 2011. The agency said the company did not replace the nozzle until January 2016.

Exxon Aware of Problem

One of the three citations was listed as “willful-serious” because Exxon was aware of the hazardous condition and did not take reasonable steps to address it, according to Cal/OSHA. The other two were general citations for “ExxonMobil’s failure to conduct a hazard analysis and identify and address the 2011 modified hydrofluoric acid leak.” Within 48 hours of the hydrofluoric acid release, Exxon mitigated the leak that the faulty clamp caused, and it removed tank 5C-31 from service—where the faulty nozzle was attached—to make repairs. Before Cal/OSHA allowed Exxon to restart alkylation operations in January, a full inspection of the alkylation unit was done to ensure more flanges or nozzles were not leaking. “This is a case where a minor repair could have prevented workers at this refinery from exposure to a life-threatening acid,” said Cal/OSHA Chief Juliann Sum in an agency news release. “These citations and penalties are a wake-up call that refineries must follow strict safety protocols to protect their employees.” When the $72,120 proposed penalty for the hydrofluoric acid leak is added to the existing $566,600 in penalties from the February 2015 explosion, Exxon has $638,720 in fines to discuss with Cal/OSHA if it decides to appeal these latest charges.

More Emergencies

A release of steam that contained a trace amount of pitch from the coker unit looked like smoke to a lot of Torrance residents when it occurred Oct. 23, 2015. Cal/OSHA and the South Coast Air Quality Management District are investigating the incident. An inside source at the plant told an oil industry analyst that the leak occurred in an 8-inch pipeline in one of the three heaters in the coker unit. Water was aimed at the leak to cool down the unit where pitch is heated up to 920 degrees under 300 pounds per square inch pressure.

Then on Dec. 4, 2015 fuel vapor and hydrogen sulfide seeped through a dime-size hole in a pressurized eight-inch pipe about 25 feet off the ground in the fuel gas treater unit. Exxon activated fixed water monitors to prevent the release from leaving the plant and its hazmat unit used a patching collar on the pipe to stem the leak. The plant’s flares burned off the gases to reduce pressure in the leaking pipeline. A company spokesperson said the refinery notified the California Office of Emergency Services that it may have exceeded the reportable quantity of 500 pounds for sulfur dioxide and 100 pounds for hydrogen sulfide. The South Coast Air Quality Management District was also notified about the unplanned flaring.

Community Angry

Residents around the Torrance refinery are getting weary of all the near miss catastrophes like the September 2015 potentially life-threatening leak of hydrofluoric acid. A large release of hydrofluoric acid could injure and kill those living and working in the surrounding community.

The February 2015 fire that damaged the fluid catalytic cracker (FCC) unit, which makes gasoline, coupled to the shutdown of the alkylation unit resulted in less gasoline supply, which caused pump prices on the West Coast to soar and tempers to rise.

The Torrance Fire Department is not happy with how Exxon responded to the hydrofluoric acid leak. It said the company did not follow established emergency procedures, including calling for a hazardous materials response.

Now, the South Coast Air Quality Management District is studying whether to ban hydrofluoric acid’s use locally, and the community group, Torrance Refinery Action Alliance, is mounting a campaign to discontinue the use of hydrogen fluoride at the refinery, saying safer alternatives exist.

Currently, there are safer alternatives but some are in the pilot stage of testing and another, sulfuric acid, is extremely expensive to change over to and still has a risk, though less, to the surrounding community.

Exxon could have averted these problems if it had only resolved the health and safety issues it knew about and if it had worked hard to monitor, resolve and prevent health and safety hazards that lead to near misses and accidents

Union Saves Job of Member Wrongly Accused of Strike Violence

Shell management at its Deer Park, Texas, refinery terminated a Local 13-1 member for allegedly engaging in picket line violence during the 2015 National Oil Bargaining (NOB) unfair labor practice (ULP) strike, but the local union successfully won his job back with full back pay and benefits after taking the case to arbitration.

Local 13-1 filed a grievance and said the termination was a violation of the local union contract. Shell denied the grievance on April 8, 2015 and the local sought arbitration on April 13, 2015. After both parties chose an arbitrator, the hearing before the arbitrator was held in Deer Park on Nov. 20, 2015. The arbitrator issued his ruling on March 29, 2016.

At issue was whether Shell had just cause to terminate the grievant and if not, what was the appropriate remedy?

Feb. 2, 2015 Incident

During his picket duty, the grievant wrote down license plate numbers of vehicles entering the plant at Gate 8. After passing by twice, a contractor drove his pick-up truck through the gate past the grievant and other picketers. When he reached the gate’s guardhouse he was told he drove through the wrong entrance and needed to use Gate 8A.

The contractor then drove back through Gate 8, passing between picketers. The grievant stood alone on the right side of the contractor’s truck and accidently broke the vehicle’s rearview mirror while trying to move out of the truck’s way.

That day, the Shell security manager told picketers that “nothing more would come of the incident.”

Company Investigation After Strike Ends

Nothing happened to the grievant until a human resources (HR) manager began an investigation of the incident after the ULP strike ended at Shell’s locations on March 17, 2015. The HR manager talked to the grievant in the presence of Local 13-1 President Lee Medley and the maintenance manager. She also spoke with a company assistant facility security officer, the facility’s security manager and the grievant’s ex-team leader.

The HR manager viewed video footage of the Feb. 2 incident and conferred with other managers who also saw the video. The maintenance manager ultimately decided the video showed the grievant deliberately striking the truck’s rearview mirror and terminated him on March 20, 2015 for allegedly violating Shell’s Workplace Violence Policy.

Shell’s Arguments

Shell contended it had just cause to fire the grievant because it claimed that video footage showed him intentionally breaking the mirror on the contractor’s truck. The company also claimed it had conducted a thorough investigation and had considered all the evidence objectively without intent of malice and arbitrariness. It requested the arbitrator deny the grievance.

The union argued that Shell failed to satisfy its burden of proving the grievant committed an offense worthy of termination. It contended that since it was the local’s first strike in 35 years and that emotions run high during such an event, alleged incidents of picket line misconduct should not be subject to precise evaluation under standard just cause principles. According to the USW, the refinery’s Workplace Violence Policy should not apply.

Secondly, the union asserted the company’s evidence was not enough to satisfy its burden to prove just cause termination. Shell denied the grievant due process, according to the USW, by relying on unclear videos lacking in sound that no one could view outside the presence and control of company representatives. These videos were videos of the original video.

Plus, Shell representatives failed to interview any eyewitnesses to the Feb. 2 incident besides the grievant.

Company’s Investigation Questioned

Therefore, the union argued, Shell failed to demonstrate it conducted a fair and thorough investigation or that the evidence submitted proved the grievant hit the truck mirror intentionally.

Lastly, the union said Shell did not explain why seven weeks passed from the date of the Feb. 2 incident until the execution of the return-to-work agreement in mid-March for the company to investigate the grievant and terminate him.

For these reasons, the union requested that the arbitrator sustain the grievance and direct Shell to reinstate the grievant and make him whole for his losses.

Arbitrator Agrees With Union

The arbitrator determined that Shell did not have just cause to terminate the grievant and came to that conclusion for these reasons: Shell did not satisfy its burden of proof of wrongdoing because the arbitrator was not convinced the video clips shown displayed the grievant intentionally breaking the mirror on the contractor’s truck. He said he could not even tell what part of the grievant’s body came in contact with the truck.

“I don’t know if it was his hand, his elbow or his shoulder. That is how unconvincing I found the video evidence offered at hearing to be in proving the company’s case,” the arbitrator wrote.

Shell tried to argue that the minor differences between the accounts the grievant gave on the day of the incident, during the company’s investigative interview and at the hearing showed the grievant intentionally broke the contractor’s mirror.

The arbitrator shot down that argument by writing in his decision that since a strike had not occurred at that facility in 35 years, no one, including the grievant, had experience walking a picket line. The arbitrator wrote that the contractor was confused about which gate to enter, admitted he was not trying to run over anyone, and had not seen the 10-mile-per-hour signs posted at Gate 8. The contractor estimated he was driving about 15 to 20 miles per hour on his way in. Other picketers at Gate 8 testified about the confusion at the scene.

“Given this state of agitation, it is not surprising the grievant’s recollection may not have been carved in stone,” wrote the arbitrator.

Workforce Violence Policy Not Applicable

As to Shell’s Workforce Violence Policy, the arbitrator wrote that since the record failed to establish that the grievant intentionally broke the truck mirror, it did not apply to this dispute.

The arbitrator also wrote that Shell failed to perform a proper investigation by not interviewing the contractor or the other picketers at the scene and relying on videos alone. He wrote that this approach failed to give the grievant a fair and impartial investigation, a necessary step to establish just cause for dismissal.

For all these reasons, the arbitrator ruled on March 29, 2016 that Shell failed to establish just cause for the grievant’s termination, and ordered the company to reinstate the grievant to his former job and make him whole for losses sustained as a result of the termination, less interim earnings.

What’s Up Next

In the next issue we’ll have extended coverage in The Oil Worker.

Here are some of the stories:

ü An oil worker’s induction into the Louisiana AFL-CIO Hall of Fame,

ü What the USW accomplished at a global discussion on oil health and safety,

ü What the U.S. Chemical Safety Board said about the use of hydrogen fluoride,

ü How Tesoro workers fought the company for bonus payments due them,

ü What has happened since Congress lifted the crude oil export ban,

ü Discussion at the Marathon Council,

ü Process safety management revisions in California and

ü The pipeline safety bill.

Breaking news stories will be featured as well. As always, locals and oil workers are welcome to send photos and stories to lhancock@usw.org.