Caterpillar Must Let Union Investigator Into Site of Death

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Laura D. Francis
Oct. 2 — Caterpillar Inc. must allow a United Steelworkers investigator into a Wisconsin facility to examine the site of a fatal workplace accident, the U.S. Court of Appeals for the Seventh Circuit held Oct. 2, affirming a National Labor Relations Board order (Caterpillar Inc. v. NLRB, 7th Cir., No. 14-3528, 10/2/15).

The union's right to represent its employees vastly outweighs Caterpillar's interest in protecting its property rights, the appeals court said. Caterpillar's attorney acknowledged that allowing the investigator to conduct an on-site investigation would cause “no actual harm” to the company, the court said, whereas the investigator could uncover the yet-unknown cause of the accident, leading to changes that would reduce the chances of a future accident.

“We can't exclude the possibility that the company's unexplained, unjustified refusal of access to [USW investigator Sharon] Thompson was intended not only to prevent the union from investigating safety issues and perhaps discovering negligence by Caterpillar but also to demonstrate to its employees that the union can do nothing to enhance their safety,” Judge Richard A. Posner wrote for the court. “The union's duty to attend to the safety of the employees whom it represents entitles it to insist on performing its own investigation of safety issues, rather than relying entirely on data given it by the company.”

Judge David F. Hamilton joined the majority opinion.

Third Judge Rejects Muscle Flexing as Union Right

Judge Daniel A. Manion wrote an opinion concurring in the judgment. He agreed that the board properly balanced the rights of the company and the union. But he disagreed with the majority's assertion that Caterpillar didn't retain property rights merely because allowing a union investigator into its facility wouldn't do any harm.

Manion also argued that a union's right to responsible representation doesn't necessitate access to the employer's property if its needs can be met through other means.

“It is the union's need for access, rooted in the employees' right to responsible representation, that weighs heavier on the scale than Caterpillar's property rights,” Manion wrote. “Whatever benefit the union derives from demonstrating to its members that it is not impotent is not weighed in the balance.”

“The right to responsible representation does not include the right to flex union muscle,” he said.

Union Investigator Barred From On-Site Investigation

The case arose following a fatal accident at Caterpillar's weld shop in a South Milwaukee, Wis., factory. A union-represented worker was crushed to death by a 36-ton “crawler”—similar to the tracks of a bulldozer or tank—and the company notified the local police and the Labor Department's Occupational Safety and Health Administration.
Union officials visited the scene, but they weren't safety specialists, so the union asked Thompson, an experienced health and safety specialist at USW's headquarters, to investigate. Caterpillar denied Thompson access to the site, although she was permitted to view videos of a reenactment of the accident.

Finding the videos an inadequate substitute for an on-site investigation, the USW went to the NLRB. The board found for the union and ordered that the investigator be permitted access to the accident site (Caterpillar Inc., 361 N.L.R.B. No. 77, 10/30/14; 211 DLR A-1, 10/31/14).

On appeal, Posner noted that the cause of the accident, which occurred in 2011, has never been determined. That means Caterpillar hasn't taken any “serious, reliable measures to avoid a recurrence,” nor can it until the cause is discovered, “something the company appears to have no interest in,” he said.

Even if the cause can't be determined at this point, Posner said, the case wouldn't be moot because “rescinding the Board's order would allow the company to continue to deny the union access to future accident sites. The company's choice to clean up such sites quickly cannot be allowed to defeat judicial review.”

Reenactment Videos Insufficient

The court said the “superficially strongest plank in the company's argument” is the two reenactment videos it allowed Thompson to view in lieu of an on-site investigation. “But one has only to view the videos, as we have done, to realize the shallowness of the argument.”

The videos lack any text or voices and have no sound except for “unexplained background noise,” the court said. They are also brief and “two-dimensional,” showing, from a single angle, a crawler hanging from a chain and being lowered to the floor or raised from it, the court said.

“Given the absence of text and sound it is impossible to understand what, relative to the accident, the videos demonstrate,” Posner wrote.

“Since it is apparent that the materials shown Thompson were not an adequate substitute for an on-site investigation, and it is admitted that the investigation would have imposed trivial costs on the company unless the investigation revealed safety problems that were expensive to fix, the challenge to the Board's order has no merit,” Posner said. “We therefore enforce the order and deny the company's petition for review.”

Winston & Strawn LLP represented Caterpillar. NLRB attorneys represented the board.

To contact the reporter on this story: Laura D. Francis in Washington at
To contact the editor responsible for this story: Susan J. McGolrick at

Request Labor & Employment on Bloomberg Law