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.

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NLRB’s Acting General Counsel Announces Revisions to Deferral Policy

By Edwin S. Hopson

On January 20, 2012, the NLRB’s Acting General Counsel, Lafe Solomon, in a press release announced a revision to the Board’s existing policy regarding deferral of unfair labor practice charges to arbitration under collective bargaining agreements.  Citing concerns about delays in processing grievances to arbitration, Solomon directed Regional Directors as follows:

 Section 8(a)(1) and (3) Cases

 –Conduct Charging Party investigation, make arguable-merit determination, and determine whether arbitration is likely to be completed in less than a year.

 –If arbitration is likely to be completed in less than a year:

           –Defer and conduct quarterly reviews.

           –At the fourth quarterly review (in new and currently pending cases in deferral status), send “show cause” letters to all parties seeking an explanation of why deferral should not be revoked.

           –If the Charging Party does not respond, contact the Charging Party and any individual discriminatees before dismissing for failure to prosecute.

          –If there is insufficient reason to continue deferral, conduct a full investigation; if the charge is meritorious, submit the case to Advice; if the charge is non-meritorious, dismiss absent withdrawal.

         –If there is good reason to continue deferral, contact Advice.

 –If arbitration is not likely to be completed in less than a year:

         –Determine, in consultation with all parties, including any individual discriminatees, whether deferral is inappropriate because the delay is likely to frustrate the Board’s remedial ability or unduly disadvantage the Charging Party.

        –If deferral is deemed inappropriate, conduct a full investigation and, if the charge is meritorious, submit the case to Advice.

       –If deferral is considered appropriate despite the delay, contact Advice.

Section 8(a)(5) Cases

–Make deferral decisions and conduct quarterly reviews, as under existing policy.

–If  arbitration is not likely to be or has not been completed within a year, and the case implicates individuals’ statutory rights or involves serious economic harm to the Charging Party, the Region may at its discretion conduct a full investigation and submit the case to Advice in the same manner as Section 8(a)(1) and (3) cases.

Any questions regarding implementation of this revised policy are to be directed to the Division of Advice in Washington, D.C.