Safety's Role in Labor Relations (Workplace Safety Wednesdays - Feb 2014)

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Information about Safety's Role in Labor Relations (Workplace Safety Wednesdays - Feb 2014)

Published on March 6, 2014

Author: MatthewRKorn



On Wednesday, February 19, 2014, Matthew Korn and Reyburn Lominack discussed the importance of safety to keeping your Company or facility union free. We discussed various tactics used by unions during corporate campaigns to put pressure on Companies, including using safety problems to publicly embarrass Companies. Matthew and Reyburn provided some helpful tips to Companies regarding how to remain union free by improving your Company’s safety culture, establishing safety committees that don’t violate the NLRA, and other useful strategies. They also discussed policies and practices that may violate the NLRA.

WORKPLACE SAFETY WEDNESDAYS Safety’s Role in Labor Relations Presented by: Matthew Korn and Reyburn Lominack Phone: (803) 255-0000 Email: Email:

Introduction • Safety Data and Corporate Campaigns • Concerted Activity and Refusal to Work in Unsafe Conditions • Safety Committees and Company Unions • Handbook Policies • Walk-Around Rights

Safety Data and Corporate Campaigns • Unions may use publicly-available safety data to promote their interests – National media attention – public pressure – Persuading employees • MSHA – Injury/Illness and Citation History • OSHA – Injury/Illness – coming soon?

Refusal to Work in Unsafe Conditions • The NLRA permits employees to “engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” • “It is well-established that employees who concertedly refuse to work in protest over wages, hours, or other working conditions, including unsafe or unhealthy working conditions, are engaged in ‘concerted activities’ for ‘mutual aid or protection’ within the meaning . . . of the Act.” Odyssey Capital Group, 337 NLRB 1110 (2002).

What is Concerted Activity? • Two or more employees raising a complaint regarding wages, hours, or other terms or conditions of employment. • One employee acting as a representative of others raising a complaint regarding wages, hours, or other terms or conditions of employment. – Seeking to enforce a collective bargaining agreement – “Logical outgrowth” of earlier group protest

What is NOT Concerted Activity? • One employee raising a complaint about his or her individual wages, hours, or other terms or conditions of employment. – Work assignment – Overtime pay – Individual complaint of sexual harassment by supervisor

Too Cold!!! • Labor Board v. Washington Aluminum Co., 370 U.S. 9 (1962) – Supreme Court found employees engaged in protected concerted activity even though they did not verbally complain.

Too Dangerous!! • Bettie Page Clothing, 359 NLRB No. 96 (2013) – Board held employees engaged in protected concerted activity when they presented concerns of employees about working late in an unsafe neighborhood, and Facebook posts were continuation of that effort. – Facebook posts alone were protected concerted activity because they were complaints about conduct of a supervisor as it related to their terms and conditions of employment.

Too Dirty!!! • Kiewit Power Constructors Co., 355 NLRB No. 150 (2010) – Board held outbursts about having to take “breaks in place” were protected concerted activity.

Too Icy!!! • Construction Products, 346 NLRB 640 (2006) – Employees engaged in protected concerted activity by refusing to come to work in icy road conditions.

Safety Committees –Keys to a lawful safety committee • Stated purpose should be to share information with company (i.e., “brainstorming” group) • Committee should not make formal proposals or recommendations to company • Company should be able to choose whatever ideas it wants • Employees can perform assigned tasks, including making safety inspections and noting violations, without making recommendations.

Confidential Information • Broad bans on the disclosure of personal or financial information would deny employees their rights • Confidentiality requirements for proprietary company information (processes, costs, etc.) can be valid • Code of Conduct

Confidential Investigations • A “blanket” requirement that employees not discuss an investigation is illegally overbroad • Employer can require confidentiality if: – Witnesses need protection – Evidence may be destroyed – Testimony could be fabricated – A cover up is possible

Non-Disparagement Rules • Rule that prohibits the making of non-disparaging statements about other employees, supervisors, or the company will generally be found to be illegally overly broad and restrictive of employee rights • Courtesy rules are also found to be illegally overbroad

Off-Duty Employee Access • Legal: Policy prohibiting off-duty access to interior areas of the plant is legal • Illegal: If a policy contains exceptions for company related matters, gives the company discretion, or requires prior approval of management is illegal

Non-Employee Representatives • OSHA Standard interpretation letter: February 21, 2013 – A person affiliated with a union or with a community representative can act on behalf of employees as a walk-around representative so long as the individual has been authorized by the employees. • Company options – Allow the OSHA Compliance Officer and union representative in – Allow the OSHA Compliance Officer in, but deny access to the union representative • Search warrant – Company position • Employee representatives have to be employees • Trade secrets

Final Questions? Presented by: Matthew Korn and Reyburn Lominack Phone: (803) 255-0000 Email: Email:

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