Kreisman Law Offices Professional Corporation
Caterpillar Inc. purchased a factory owned by Bucyrus International located in Milwaukee. That facility was making strip-mining equipment. Because of the purchase, Caterpillar assumed the labor contract Bucyrus previously had negotiated with the United Steelworkers Union.
About two months after the July 2011 purchase, a 36-ton piece of machinery called a “crawler” crushed and killed a union worker at the Caterpillar plant.
The crawler apparently had shifted suddenly while being rotated by a crane, resulting in the fatality. Caterpillar reported the death to the federal Occupational Safety and Health Administration (OSHA) and to the local police.
OSHA investigators, police, company executives and local Steelworkers’ agents descended on the accident site within hours of the death. Noteworthy for the case is the fact that the union representatives at the site were not safety experts.
On the evening following this incident, Caterpillar, without union officials or observers present, enlisted one of its crane operators to re-enact the accident for videotaping.
On the day following the incident, a union health and safety specialist from the union headquarters in Pittsburgh arrived at the Caterpillar plant. Caterpillar denied the union health and safety specialist access to the accident site despite a regional manager’s prior commitment to the union to cooperate fully. The union complained to company management, which took the position that Caterpillar was cooperating with government officials, including those from OSHA, and thus it did not need to cooperate with the union.
Caterpillar finally did allow the union investigator to review the re-enactment videotapes after she signed a confidentiality agreement, which was deemed a poor substitute for an actual onsite investigation.
Caterpillar did a second accident re-enactment a week later and again did not invite the union or the union’s health and safety specialist. OSHA ultimately fined Caterpillar for choosing not to maintain a hazard-free work environment, but no one could ever determine with any certainty the cause of the accident.
The union filed an unfair labor practice charge with the National Labor Relations Board relating to Caterpillar’s refusal to allow the union health and safety specialist on the site. The Labor Relations Board found that Caterpillar, in not allowing the union’s safety agent access to the accident site, violated the National Labor Relations Act. Caterpillar appealed to the 7th U.S. Circuit Court of Appeals. The court of appeals affirmed the decision in favor of the National Labor Relations Board.
The court of appeals found that had Caterpillar permitted the union investigator to conduct her own onsite investigation and she discovered company practices that might have caused the accident, “the correction of those practices would be a proper matter for collective bargaining.”
The 7th Circuit was not persuaded by Caterpillar’s arguments that because of its property rights, Caterpillar could block the union from viewing the accident zone. The court was not persuaded by the argument that the union’s health and safety specialists was unlikely to find the cause of the accident. The court said that without the union’s investigation it was still to be discovered whether or not the chances of discovering the cause were small or zero. But since they were not zero, the appeals panel found that the union investigator should have been allowed to view the accident site.
The 7th Circuit also looked with disfavor at Caterpillar’s argument before the Board but abandoned before the court that the union investigator’s investigation might reveal to the union confidential information. Caterpillar and its predecessor, Bucyrus, the court stated, allowed all kinds of outsiders, including civic groups and schoolchildren on field trips, to tour the facility without requiring them to execute the confidentiality agreement that the union was required to sign.
The 7th Circuit also found Caterpillar’s provisions of the reenactment videotapes to the union investigator to be inadequate as the voiceless tapes without captions did not show the crane actually pivoting or shifting or set out to any scale the one worker who occasionally appeared in the videos.
The court of appeals also focused on the fact that in oral argument Caterpillar’s attorney conceded that allowing the union and the union investigator to conduct an onsite investigation for several hours would cause “no actual harm” to Caterpillar.
The court of appeals concluded that the union’s interest in site access following a fatal accident was “compelling” and clearly outweighed the company’s interest in protecting its property because allowing union access, as Caterpillar conceded, would cause Caterpillar “no actual harm.”
“We can’t exclude the possibility that the company’s unexplained, unjustified refusal of access was intended . . . also to demonstrate to its employees that the union can do nothing to enhance their safety.”
The 7th Circuit affirmed the Board’s decision stating that Caterpillar’s lack of “actual harm” from the union inspection simply demonstrated here “that Caterpillar’s property rights can be sufficiently accommodated even if it is forced to allow union access.”
Caterpillar, Inc. v. NLRB, No. 14-3528 (7th Cir., Oct. 2, 2015).
Kreisman Law Offices has been handling worksite injury cases, catastrophic injury cases, truck accident cases, car accident cases and product liability cases for individuals and families who have been injured or killed by the negligence of another for more than 38 years, in and around Chicago, Cook County and its surrounding areas including, River Grove, Palatine, Palos Hills, Wheeling, Winfield, Waukegan, Winnetka, Calumet Park, Merionette Park, Palos Heights, Blue Island, Grayslake, Crystal Lake, Clarendon Hills, Lemont and Orland Park, Ill.
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