A union-represented worker was crushed to death at work. Union officials visited the scene of the accident and then asked their own health and safety specialist to investigate. The company denied the union’s investigator access to the accident site. Instead, the company provided the investigator with two videos reenacting the accident.

The union filed an unfair labor practice charge with the National Labor Relations Board, and the Board ordered the company to grant access to the investigator. The appellate court affirmed the Board’s order and concluded that the union’s right to represent its employees outweighed the company’s interest in protecting its property rights. The court criticized the two reenactment videos provided to the investigator because they lacked text or voices, had no sound except for “unexplained background noise,” and only showed one angle of the scene. These low-quality videos made it impossible for the court to understand what the videos were intended to demonstrate.

This case reaffirms our experience – that it is difficult for companies to justify excluding a union investigator from an accident site. Unions have the right to investigate circumstances surrounding workplace injuries consistent with their duty of fair representation of their members. But, that right has some limitations, so companies should consult counsel before unilaterally deciding to exclude unions from the site of workplace injuries.