On April 23, 2013, the National Labor Relations Board
issued its decision in Caterpillar, Inc., 359 NLRB No. 97 (2013),
holding that a company's refusal to allow a non-employee union representative
on its property after a fatal accident to investigate the accident was a
violation of Section 8(a)(5) of the National Labor Relations Act. The rationale
for its decision was: since the union represented the employee fatally injured
and was seeking access to investigate the cause of the fatal accident, the
denial of access was an unlawful refusal to provide the union with information
it was seeking about a safety issue at the plant. The Administrative Law Judge
who heard the case stated in his decision, in part:
"Information, which concerns unit terms and conditions of
employment is 'so intrinsic to the core of the employer employee relationship'
that it is presumptively relevant. York International Corp., 290 NLRB 438
(1988). Concerning health and safety, the Board has held: 'Health and safety
matters regarding the unit employees' workplaces are of vital interest to the
employees and are, thus, generally relevant and necessary for the union to
carry out its bargaining obligations . . . . Few matters can be of greater
legitimate concern. Detroit Newspaper Agency, 317 NLRB 1071 (1995) [an enhanced version of this opinion is available to lexis.com
subscribers]; see also American National Can Co., 293 NLRB 901, 904
(1989) (health and safety matters are mandatory subjects of bargaining)."
The Board, in affirming the ALJ, stated:
The judge properly applied the balancing test
articulated in Holyoke Water Power Company [273 NLRB 1369 (1985) [enhanced version], enfd. 778 F.2d 49 (1st Cir.
1985)] to conclude that, under the circumstances presented here, implicating
significant health and safety matters, the Respondent's property rights must
yield to the employees' right to responsible representation.
The company was ordered to allow the union's
representative access to the facility.
Read about additional Labor and Employment
Law Developments by Edwin S. Hopson in the Wyatt
Employment Law Report.
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