A federal appellate court in the Midwest suggests that while unions do not have blanket approval to inspect an employer’s worksite, the union’s interest in safety generally will outweigh an employer’s interest in confidentiality and property rights. The United States Court of Appeals for the Seventh Circuit, in Caterpillar, Inc. v. NLRB, 803 F.3d 360 (7th Cir. 2015), enforced an order of the National Labor Relations Board (“NLRB”) that Caterpillar must permit a United Steelworkers safety expert to inspect the site of a fatal accident. Caterpillar Inc. & United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 361 NLRB No. 77 (Oct. 30, 2014). Although the Seventh Circuit only has jurisdiction over Illinois, Indiana and Wisconsin, the court’s ruling counsels that a unionized employer should be careful about denying a union safety representative to inspect an accident site absent extraordinary circumstances.
 
The accident that started this dispute occurred at a Caterpillar factory in South Milwaukee. The factory manufactures large strip-mining equipment. In part of the factory, employees manufacture “crawlers,” which resemble the tracks of a bulldozer. A Caterpillar employee, who was a member of the bargaining unit represented by the local United Steelworkers union, was killed when a 36-ton crawler unexpectedly shifted while it was lifted by a crane and crushed him.
 
Caterpillar reported the accident to the police, the Department of Labor (“DOL”), and the Occupational Safety and Health Administration (“OSHA”). Local union officials also visited the scene shortly after the accident. That evening, Caterpillar reenacted the accident for corporate officials, OSHA, the police and the medical examiner. Union officials, however, were not informed about the reenactment and were therefore absent. The cause of the accident has never been discovered.
 
The day after the accident, the union sent its safety expert to investigate the scene, but Caterpillar denied the expert access. Caterpillar said the part of the factory in which the employee was killed contained manufacturing and operational processes it considered proprietary and confidential business information. Instead, Caterpillar allowed the union and its expert to view the video of the reenactment from the night before, provided the union signed a confidentiality agreement. Not surprisingly, the union’s expert deemed the video an inadequate substitute for an on-site investigation.
 
Soon after the union was denied access, it filed an unfair labor practice charge with the NLRB seeking access to the accident site. The union alleged that Caterpillar committed an unfair labor practice by violating its employees’ right to engage in concerted activities regarding the conditions of employment and by failing to bargain collectively with union representatives. The duty to bargain with union representatives includes providing information the union requires and that could affect collective bargaining, such as information related to safety. Three years after the union filed its charge, the NLRB agreed with the union and ordered Caterpillar to permit a union expert to investigate the accident site. Caterpillar appealed to the Seventh Circuit.
 
When a union seeks access to an employer’s facility, courts balance the right of employees to be responsibly represented by their union and the right of the employer to control its property and ensure that its operations are unhindered. On appeal, argument centered over whether the union’s interest in safety outweighed Caterpillar’s interest in protecting its property rights. The court found that the union’s interest in safety was significant. By investigating the site it “would be demonstrating its right and ability to look out for the safety of the employees whom it represents, rather than leaving their safety entirely at the mercy of the employer.” And, although the chances were remote due to the passage of time, the union could still discover the cause of the accident. On the other hand, the court found Caterpillar’s property interests negligible. The costs of permitting an investigation were “trivial,” and Caterpillar could not, according to the court, claim any confidentiality interests because it “had permitted politicians, customers, dealers, civic groups, and high school students to tour” where the accident occurred. On balance, the Seventh Circuit found that the union’s interests outweighed Caterpillar’s. Accordingly, it enforced the NLRB’s order requiring Caterpillar to permit the union’s experts to investigate the accident site.
 
The Seventh Circuit’s decision provides guidance for employers when a union is seeking to inspect the site of an accident involving unionized employees. When an accident occurs, an employer of unionized employees should permit union safety representatives access to the accident site except in extraordinary circumstances. Such extraordinary circumstances likely are rare because, as the Seventh Circuit indicated, safety concerns are within the scope of collective bargaining, and the union’s interest in safety will generally outweigh an employer’s countervailing property interests. The employer should, however, treat a union inspection similar to any regulatory safety (e.g., OSHA) inspection by following these simple guidelines. Never leave the union representative’s side during the inspection. Carefully record the entire discussion and preserve it for future use. If the union representative takes pictures or videos of something, identical pictures or video should be taken. Ask questions about the union representative’s background and experience in the subject matter of the safety issues which the union may take issue with.

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