Agency – Union Investigation

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Civil

7^th Circuit Court of Appeals

Officials: POSNER, MANION, and HAMILTON, Circuit Judges

Agency – Union Investigation

No. 14-3729; 14-3528 NLRB v. Caterpillar, Inc.

Company re-enactment video not sufficient replacement for on-site investigation of employee death.

“Earlier we cited the Second Circuit’s decision in the Hercules case. The Labor Board’s decision upheld in that case contains some pungent observations that are pertinent to the present one: “In no sense then, is there merit to Respondent’s argument that whatever rights the Union has to access are to be nullified because OSHA conducted an investigation.” Hercules Inc., 281 N.L.R.B. 961, 964 (1986). “It defies all reason to maintain that the cause of the accident could be analyzed without a physical examination of the premises … . Although witness reports, production reports, and operating manuals no doubt are quite valuable in compiling a comprehensive investigation, these are independent of, and supplementary to, a site inspection.” Id. at 967. “The potential for controlling the results by controlling the investigator simply is so obvious that we need not dwell on the claim that Respondent’s air sampling reports are a viable alternative to the Union’s independent inspection. It is elementary that here, as with the accident investigation, a verifiable, fair, accurate, and complete investigation necessitates the Union having access to conduct its own air monitoring. The need for such live study by the Union is compelling.” Id. at 968. “The Union is not obligated to rely solely on reports and information obtained by others. It is entitled to its own independent examination of the facilities and this entitlement is unrelated to the Respondent’s contention that its own studies and examinations are performed with such accuracy and expertise that no independent verification is required. Such position amounts to an absolute, closed-door policy and renders irrelevant the balancing test that is required to be done. Moreover, it would appear that the circumstances create a presumption not only of relevancy and need, but of access as well.” Id. at 970.”

Company petition to review denied

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.