Union Safety Specialist Must Be Given Access to Fatal Accident Site

By Fiona W. Ong Oct 30, 2015
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An employer’s denial of access by a union safety specialist to a fatal accident site was unlawful, according to the 7th U.S. Circuit Court of Appeals, in enforcing an order of the National Labor Relations Board (NLRB) to allow the specialist such access, based on the union’s interest in protecting the health and safety of the workers it represents.

The National Labor Relations Act ensures the right of employees to engage in concerted activities regarding the terms and conditions of employment, and requires employers to bargain collectively with the employees’ bargaining representative (i.e., the union). This encompasses the obligation to provide information that the union requires and that could affect collective bargaining, such as information related to workplace safety.

In 2011, a worker at a unionized factory was crushed to death. An investigation commenced within hours, involving agents of the Occupational Safety and Health Administration (OSHA) and police officers, along with local union officials and company executives. The union officials notified the company that a safety specialist from the union’s national headquarters would be arriving the next day to inspect the accident site. When the safety specialist arrived, however, she was denied access to the site, although she was provided with documents, the police report and re-enactment videos. Ultimately, no cause for the accident was determined by OSHA or the police, although the company was fined by OSHA for failing to provide a hazard-free workplace.

The NLRB ordered the company to permit the safety specialist access to the accident site. The company petitioned the 7th Circuit for review of the board’s order, arguing that it encroached on its “legitimate rights to control its operations and property.”

On review, the 7th Circuit applied a balancing test of the company’s property interests against the union’s interest in protecting worker health and safety. The 7th Circuit rejected the company’s argument that further investigation by the union had been mooted by the passage of time, as well as by the investigation by OSHA and the police. As the 7th Circuit noted, no cause was ever found, and the materials from the others’ investigation “were not an adequate substitute for an on-site investigation.” Additionally, the costs to the company in permitting access to the worksite were “trivial,” as there would be minimal disruption to the company’s operations. And, although unlikely, it is possible that the safety specialist might identify the cause of or contributing factors to the accident and could suggest workplace safety improvements.

Moreover, by being allowed access, the union “would be demonstrating its right and ability to look out for the safety of the employees whom it represents, rather than leaving their safety entirely at the mercy of the employer.” The 7th Circuit also expressed concern that the company’s denial of union access would recur in the future if the board’s order was rescinded. Thus, according to the 7th Circuit, the balancing test favored the union.

Caterpillar Inc. v. NLRB, 7th Cir., Nos. 14-3528 and 14-3729 (Oct. 2, 2015).

Professional Pointer: Unionized employers should generally permit union safety specialists the same workplace access to accident sites as other investigators, if such access is requested. Health and safety concerns are a matter within the scope of collective bargaining, and the union’s interest in such concerns will generally outweigh an employer’s property and operational interests, particularly where there has been a fatality, in all but the most exceptional circumstances.

Fiona W. Ong is an attorney with Shawe Rosenthal LLP, the Worklaw® Networkmember firm in Baltimore.

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