Questions on how employee participation in a company''s safety and health program affects the National Labor Relations Act (NLRA) are increasing as OSHA has incorporated worker participation in most new or proposed standards.
The concern over the legality of management-sponsored safety committees was raised recently when OSHA proposed a draft comprehensive safety and health program standard, which would mandate active employee participation in the process of preventing and correcting workplace hazards. In response, many employer groups argued that this proposal might mandate a dominated safety committee in violation of the NLRA. Such a committee, they claimed, could be challenged under Section 8(a)(2) of the act as employer-dominated labor organizations.
Can a company adhere to a regulation without possibly violating a labor law? Employers can have "safe harbors" when including employees in safety committees, according to Horace A. "Topper" Thompson III, an attorney with McCalla, Thompson, Pyburn, Hymowitz & Shapiro in New Orleans. Thompson was one of the speakers at a session Tuesday during the National Safety Council''s Congress in Orlando, Fla.
Union and nonunion employers can have safe harbors when using safety committees, Thompson contends, by following several suggestions of actions to take or to avoid:
- Do select employee participants at random or as volunteers;
- Do arrange for a turnover or revolving participation of employee group members;
- Do limit discussions to issues involving work quality, production, customer relations, efficiency and safety;
- Do share information, ideas and experiences;
- Do engage in "brainstorming;"
- Do present a range of ideas to management, rather than a single proposal;
- Do encourage managers to facilitate discussion among employee participants;
- Do seek input from sources other than the employee group; and
- Do answer questions from employees on policies and procedures, including questions about unions.
- Don''t have employees vote for representatives to the group;
- Don''t suggest to employees in the group that they are acting as representatives;
- Don''t encourage employees in the group to report to co-workers;
- Don''t divide into subcommittees or study groups that produce recommendations or decisions;
- Don''t allow employees to engage in give-and-take exchanges ("negotiations") with management members in the group;
- Don''t allow managers in the group to accept, reject or vote on ideas and suggestions from the group''s members;
- Don''t let the group consider personal grievances, unless it''s going to rule on them;
- Don''t let the group vote on recommendations to make to management;
- Don''t compel the group to reach a consensus and present a single, unified proposal on a subject;
- Don''t let the group respond to management action on issues considered by the group.
Thompson suggests that the wise employer should learn that employee involvement always should be considered with full recognition that the National Labor Relations Act is designed to protect workers'' rights to representation free from interference, domination or unlawful assistance.
by Todd Nighswonger