Wyatt Employment Law Report

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NLRB Finds Employer’s Refusal to Allow a Non-Employee Union Representative Access To Its Plant Unlawful

By Edwin S. Hopson

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); 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), 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.