Safety and Health: Legal Framework

1
Safety and Health Legal Framework

• Statutory
• Occupational Safety and Health Act (OSH Act) of
  1970
• Sets uniform standards
• All business affecting commerce and agriculture
• For businesses covered by other federal agencies
  if those agencies have not adopted HS standards
  (trucking, railroads)
• Agencies
• Occupational Safety and Health Administration
  (OSHA)
• Sets standards, conducts inspections, issues
  citations, assesses penalties, establishes
  record-keeping requirements, provide information,
  etc.
• Occupational Safety and Health Review Commission
  (OSHRC)
• Reviews decisions of OSHA
• National Institute for Occupational Safety and
  Health (NIOSH)
• Conducts research on safety hazards
• Permits employees to refuse unsafe work
• Many states have comparable statutes for public
  employees
• LMRA Sec. 502 states . . . nor shall the
  quitting of labor by an employee or employees in
  good faith because of abnormally dangerous
  conditions for work at the place of employment of
  such employee or employees be deemed a strike . .
  ..

2
Safety and Health Legal Framework (cont.)

• Supreme Court Decisions
• NLRB v. Gulf Power, 384 F.2d 822, 66 LRRM 2501
  (CA 5, 1967)
• Health and safety issues are mandatory subjects
  of bargaining under NLRA
• Gateway Coal Company v. Mineworkers, 414 U.S.
  368, 94 S.Ct. 629, 85 LRRM 2049 (1974)
• Presumption of arbitrability in Warrior Gulf
  applies to safety disputes
• Courts under Boys Market, Inc. v. Retail Clerks
  Union, Local 770, 398 U.S. 235, 90 S.Ct. 1583
  (1970) may issue an injunction stopping a strike
  over a safety issue when arbitration provision
  covers safety issues and there is a no-strike
  clause
• Section 502 of LMRA overrides no-strike clause
  only if there is objective evidence of abnormally
  dangerous working conditions subjective evidence
  (such as presumed supervisor incompetence is
  insufficient to meet requirements of Sec. 502)

3
Arbitration and Safety and Health

• Not that frequent, most appear in other contexts,
  primarily discharge
• Generally no language in CBAs on health and
  safety
• Burden on union to show that
• Workplace is unsafe or that
• An employee will cause a safety hazard
• Refusal to perform work
• Objective Evidence Standard
• Reasonable Belief Standard
• With some basis for the belief
• Odor
• Dangerous workspace, taking into account the
  nature of the job

4
Arbitration and Safety and Health (cont.)

• Employers generally have the right to establish
  reasonable rules regarding health and safety in
  the absence of a negotiated procedure for setting
  such rules
• Are the rules reasonably related to the business
  objective asserted?
• Protective clothing
• Employee monitoring requirements for chemicals or
  other substances

5
Arbitration and Safety and Health (cont.)

• Discipline
• Arbitrators generally apply just cause principles
  to discipline regarding safety violations
• Reasonableness of rules
• Hair
• Jewelry
• Uniform enforcement

6
Employee Health and Employment Status

• Employee health endangered by position
• Non-disciplinary termination appropriate,
  consistent with ADA
• Reassignment may be ordered, consistent with CBA
• Light Duty due to injury
• Depends on collective agreement and practice of
  the parties

7
Sample Contract Provisions

• If an employee becomes unable to perform the
  duties of his particular job classification
  satisfactorily due to physical disability or
  infirmity, he may displace a junior employee in
  seniority in a job classification whose duties he
  can satisfactorily perform, provided he produces
  proof of such physical disability or infirmity
  and provided he can perform the job he claims
  satisfactorily, which proof is acceptable to both
  the Employer and the Union.

• Employees . . . Injured on the job may be
  returned to limited duty, at the option of the
  Company, if so released by the clinic and
  provided their individual restrictions are such
  that limited duty work can be provided

8
Americans with Disabilities Act

• Requires reasonable accommodation
• Arbitral authority to apply ADA debatable
• Arbitrator must apply agreement, regardless of
  law/ADA requirements
• Majority view in absence of language
  incorporating law
• Arbitrator must consider legal requirements/ADA
  in the context of the agreement
• Arbitrators will likely take into account
  interests of other BU members

9
Substance Abuse

• Generally viewed as health and safety and issues
• Workplace impairment
• Employers generally given a wider scope for drug
  testing than alcohol testing
• Drugs illegal
• Alcohol legal
• Testing
• Must be done via pre-established rule
• Random
• drugs
• Generally prohibited by arbitrators in the
  absence of language permitting it -Exceptions
  evidence of drug abuse or nature of job
• Alcohol
• Rarely permitted in the absence of enabling
  language in 99 as is rarely reasonable

10
Substance Abuse (cont.)

• Testing
• Must be done via pre-established rule
• For-cause testing
• Best to have rules in place so the union has
  notice regarding any potential discipline
• Bases for testing
• Objective evidence of impairment, such as
  appearance, slurred speech, unusual behavior,
  frequent absences, etc.
• After an accident
• Testing procedures should be pre-established
• Testing organization
• Results that will indicate impairment

11
Substance Abuse (cont.)

• Just cause principles still prevail
• Unless substance abuse policy incorporated into
  CBA, discipline under a policy must meet all just
  cause standards
• Interstate Brands, Companies, 120 LA 356, 2004
  (Gregory) zero tolerance policy does not
  negate just cause provision of CBA when zero
  tolerance policy not incorporated into CBA
• Discharge not a standard penalty for a positive
  drug or alcohol test
• Work record relevant as a mitigating circumstance
  (108 LA 115, 116 LA 117, 120 LA 356)
• Also relevant
• Length of service
• Consistency of penalty
• Employee attempts to address substance abuse
  problem