The National Labor Relations Board (“the Board”) recently issued its decision in Caterpillar, Inc., 359 NLRB No. 97, in which a union charged that the employer had violated the National Labor Relations Act (“the Act”) by refusing to grant the union access to the employer’s facility to conduct a health and safety inspection in the wake of a fatal accident. The company objected to the union’s request on several grounds. First, the company noted that it had conducted an accident re-creation, which it allowed the union’s steward to attend, and had also provided a video recording of the re-creation to the union’s safety specialist. Further, the company provided copies of post-accident photographs and the local police department’s investigation file to the union. Finally, the company pointed out that the union also represented one of the company’s primary competitors, and stated that the company wanted to maintain the confidentiality of its manufacturing procedures. 

The union asserted that photographs and video recordings could not take the place of an on-site inspection, because only being physically present at the location of the accident would give the safety specialist a full understanding of the lines of sight, angles, and physical dimensions of the work area. Further, the union noted that the police department had been unable to determine the precise cause of the accident during its investigation. The union argued that it needed access to the employer’s facility in order conduct an independent investigation, which would allow the union to then engage in informed dialogue with the company about methods for preventing future accidents.

Ruling in favor of the union’s access request, the Board explained that it applies a two-part balancing test in plant access cases, weighing the right of employees to be responsibly represented against the right of the employer to control its property and ensure that its operations are unhindered. In this case, the Board found that the employees’ representational rights outweighed the employer’s property rights, primarily because matters of health and safety are of critical importance to the workforce.  

The Board discounted the employer’s stated concerns about the confidentiality of its manufacturing procedures because a predecessor employer at the same location had given public tours of the facility, and because the current employer had continued to allow some non-employee access to the facility after acquiring the plant. 

Caterpillar reinforces that the Board strongly favors granting plant access rights to unions that represent members of an employer’s workforce, particularly where the union raises health or safety concerns. Employers will face a high bar when attempting to refuse or limit union access and are well-advised to consult with counsel to develop the least restrictive access options that will still meet the company’s legitimate operational or confidentiality concerns. Employers are likely to achieve the best results by negotiating a mutually acceptable arrangement with the union whenever possible, rather than submitting the matter to a Board that is somewhat dismissive of property rights and confidentiality concerns. In cases where it proves impossible to avoid litigation, employers may be more likely to succeed in defending narrowly drawn restrictions on union access than broad refusals.