Enforcing a National Labor Relations Board order, the federal appeals court in Chicago has held an employer unlawfully denied a union safety specialist access to its facility to examine the site of a fatal accident (the cause of which had not been determined) involving a bargaining unit employee. Caterpillar Inc. v. NLRB, No. 14-3528 (7th Cir. Oct. 2, 2015).

The NLRB had held the employer violated the National Labor Relations Act by refusing to grant a nonemployee union representative access to its facility for a health and safety inspection after a fatal acci­dent. The Board applied the balancing test ar­ticulated in Holyoke Water Power Company to conclude that where, as here, the issue implicated significant health and safety matters affecting unit employees, the employer’s property rights had to yield to the employees’ right to re­sponsible representation. In Holyoke, the union had requested the employer permit the union’s industrial hygienist access to a fan room to survey potential health and safety hazards. The employer denied the request, but gave the union a summary of a noise survey not limited to the fan room. (After the employer was charged with a violation, the company offered the union further information on noise levels in the fan room, but that study was not conducted by an industrial hygienist and it may have been affected by the positioning of the measuring equipment and of doors and louvers in the room.)

The Board held:

. . . we are constrained to balance the employ­er’s property rights against the employees’ right to proper representation. Where it is found that re­sponsible representation of employees can be achieved only by the union’s having access to the employer’s premises, the employer’s property rights must yield to the extent necessary to achieve this end. However, the access ordered must be lim­ited to reasonable periods so that the union can ful­fill its representation duties without unwarranted interruption of the employer’s operations. On the other hand, where it is found that a union can ef­fectively represent employees through some alter­nate means other than by entering on the employ­er’s premises, the employer’s property rights will predominate, and the union may properly be denied access.

Applying this test, the Board in Holyoke held that the employer’s alternative to the union-requested inspection, providing information, was inadequate, and that the employer’s property rights were outweighed so that it had to permit the union hygienist reasonable access to its fan room to conduct noise level studies. A federal appeals court enforced the Board’s order.

In Caterpillar, the Board also concluded the judge’s finding that the employer had a “significant competing interest” in protecting its confidential manu­facturing processes was at odds with his finding that the employer had a “considerable history” of allowing visitors to access the plant, noting “[t]he Board has long consid­ered access granted to third parties a relevant factor un­der Holyoke, as allowing others to enter the property weakens the relative strength of the employer’s interest in denying the union access to its property.” Further, the Court rejected the employer’s argument that showing the safety investigator reenactment videos was sufficient, finding instead that the videos were merely “two-dimensional” and did not include text or voices. The Court ruled, “[s]ince it is apparent that the materials shown [the investigator] were not an adequate substitute for an on-site investigation, and it is admitted that the investigation would have imposed trivial costs on the company unless the investigation revealed safety problems that were expensive to fix, the challenge to the Board’s order has no merit.”   This case suggests that employees’ and unions’ workplace safety concerns may find a receptive audience in the NLRB. For that reason, a union’s right to access a facility to investigate safety concerns could be held to trump an employer’s interest in preserving its property rights to exclude nonemployees, absent convincing reasons.

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Photo of Daniel D. Schudroff Daniel D. Schudroff

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative…

Daniel D. Schudroff is an Associate in the New York City office of Jackson Lewis P.C.. His practice is focused on traditional labor matters, employment litigation, and counseling. Mr. Schudroff represents clients in both federal and state courts, as well as before administrative agencies including the National Labor Relations Board, New York State Public Employment Relations Board, Equal Employment Opportunity Commission, New York State Division of Human Rights, New York City Commission on Human Rights, and New York State Department of Labor. Mr. Schudroff also advocates on behalf of employers at arbitration hearings and during collective bargaining negotiations. In addition, Mr. Schudroff regularly advises unionized and non-unionized clients with respect to a wide array of issues arising under the National Labor Relations Act and Labor Management Reporting and Disclosure Act. Mr. Schudroff also regularly counsels employers affected by the Fair Labor Standards Act, Railway Labor Act, Worker Adjustment and Retraining Notification Act, Uniformed Services Employment and Reemployment Rights Act, New York Labor Law, and Taylor Law.

Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues.

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing…

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.