On Wednesday, February 19, 2014, Matthew Korn and Reyburn Lominack discussed the importance of safety to keeping your Company or facility union free. We discussed various tactics used by unions during corporate campaigns to put pressure on Companies, including using safety problems to publicly embarrass Companies. Matthew and Reyburn provided some helpful tips to Companies regarding how to remain union free by improving your Company’s safety culture, establishing safety committees that don’t violate the NLRA, and other useful strategies. They also discussed policies and practices that may violate the NLRA.

1. WORKPLACE SAFETY WEDNESDAYS
Safety’s Role in Labor Relations
Presented by:
Matthew Korn and Reyburn Lominack
Phone: (803) 255-0000
Email: mkorn@laborlawyers.com
Email: rlominack@laborlawyers.com

2. Introduction
• Safety Data and Corporate Campaigns
• Concerted Activity and Refusal to Work in
Unsafe Conditions
• Safety Committees and Company Unions
• Handbook Policies
• Walk-Around Rights

3. Safety Data and Corporate Campaigns
• Unions may use publicly-available safety data
to promote their interests
– National media attention – public pressure
– Persuading employees
• MSHA – Injury/Illness and Citation History
• OSHA – Injury/Illness – coming soon?

4. Refusal to Work in Unsafe Conditions
• The NLRA permits employees to
“engage in . . . concerted
activities for the purpose of . . .
mutual aid or protection.”
• “It is well-established that
employees who concertedly
refuse to work in protest over
wages, hours, or other working
conditions, including unsafe or
unhealthy working conditions,
are engaged in ‘concerted
activities’ for ‘mutual aid or
protection’ within the meaning .
. . of the Act.” Odyssey Capital
Group, 337 NLRB 1110 (2002).

5. What is Concerted Activity?
• Two or more employees raising a complaint
regarding wages, hours, or other terms or
conditions of employment.
• One employee acting as a representative of
others raising a complaint regarding wages,
hours, or other terms or conditions of
employment.
– Seeking to enforce a collective bargaining agreement
– “Logical outgrowth” of earlier group protest

6. What is NOT Concerted Activity?
• One employee raising a complaint about his or her
individual wages, hours, or other terms or conditions
of employment.
– Work assignment
– Overtime pay
– Individual complaint of sexual harassment by supervisor

7. Too Cold!!!
• Labor Board v. Washington
Aluminum Co., 370 U.S. 9 (1962)
– Supreme Court found employees
engaged in protected concerted activity
even though they did not verbally
complain.

8. Too Dangerous!!
• Bettie Page Clothing, 359
NLRB No. 96 (2013)
– Board held employees engaged in
protected concerted activity when they
presented concerns of employees about
working late in an unsafe neighborhood,
and Facebook posts were continuation
of that effort.
– Facebook posts alone were protected
concerted activity because they were
complaints about conduct of a
supervisor as it related to their terms
and conditions of employment.

9. Too Dirty!!!
• Kiewit Power Constructors Co., 355 NLRB No. 150 (2010)
– Board held outbursts about having to take “breaks in place”
were protected concerted activity.

10. Too Icy!!!
• Construction Products, 346 NLRB 640
(2006)
– Employees engaged in protected
concerted activity by refusing to
come to work in icy road
conditions.

11. Safety Committees
–Keys to a lawful safety
committee
• Stated purpose should be to share
information with company (i.e.,
“brainstorming” group)
• Committee should not make formal
proposals or recommendations to
company
• Company should be able to choose
whatever ideas it wants
• Employees can perform assigned
tasks, including making safety
inspections and noting violations,
without making recommendations.

12. Confidential Information
• Broad bans on the disclosure of personal or
financial information would deny employees
their rights
• Confidentiality requirements for proprietary
company information (processes, costs, etc.)
can be valid
• Code of Conduct

13. Confidential Investigations
• A “blanket” requirement that employees not
discuss an investigation is illegally overbroad
• Employer can require confidentiality if:
– Witnesses need protection
– Evidence may be destroyed
– Testimony could be fabricated
– A cover up is possible

14. Non-Disparagement Rules
• Rule that prohibits the making
of non-disparaging statements
about other employees,
supervisors, or the company
will generally be found to be
illegally overly broad and
restrictive of employee rights
• Courtesy rules are also found to
be illegally overbroad

15. Off-Duty Employee Access
• Legal: Policy prohibiting off-duty access to
interior areas of the plant is legal
• Illegal: If a policy contains exceptions for
company related matters, gives the company
discretion, or requires prior approval of
management is illegal

16. Non-Employee Representatives
• OSHA Standard interpretation letter: February 21, 2013
– A person affiliated with a union or with a community representative can act
on behalf of employees as a walk-around representative so long as the
individual has been authorized by the employees.
• Company options
– Allow the OSHA Compliance Officer and union representative in
– Allow the OSHA Compliance Officer in, but deny access to the union
representative
• Search warrant
– Company position
• Employee representatives have to be employees
• Trade secrets

17. Final Questions?
Presented by:
Matthew Korn and Reyburn Lominack
Phone: (803) 255-0000
Email: mkorn@laborlawyers.com
Email: rlominack@laborlawyers.com