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 (7^th 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.