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 CBA’s 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 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 • 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.

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