Are Safety Rules and Requirements Mandatory Subjects of Bargaining?

By Lehr Middlebrooks Vreeland & Thompson, P.C.

December 27, 2018

On November 20, in the case of Orchids Paper Products Company, Inc., the NLRB considered an employer’s unilateral change to safety procedures. The employer required employees at its manufacturing facility to wear flame-resistant clothing, even if employees did not work in an area where there was a risk of a fire-related accident or injury. Prior to the employer’s implementation of the policy, the clothing requirement was limited to only those who worked in an area where there was a fire risk.The employer changed the policy without notifying the union in advance where the union could request bargaining over the policy.

The employer argued that its obligations under the Occupational Safety and Health Act and rights according to contract language permitted the unilateral changes to safety rules. However, the NLRB ruled that an employer’s changes to safety procedures and rules are governed by the National Labor Relations Act and thus there is a duty to provide the union with an opportunity to bargain over such a change. An exception to this requirement is if the collective bargaining agreement explicitly gives the employer the unilateral right to make these changes. In such situations, the waiver must be clear and unambiguous.

The Board ruled that the employer violated the NLRA by failing to give the union notice of the change to the policy so the union could raise issues and in essence bargain over those changes. Note that giving a union notice of a change in policy still leaves the employer with the option of implementing the policy it wants. The process requires the union to receive enough advance notice so that it could request bargaining (or meetings to discuss) before implementation. If the employer and union disagree over the policy terms, then where there is an “impasse,” the employer retains the right to go forward and implement the policy change. Thus, the incremental step of giving the union notice does not diminish the employer’s objective to achieve the policy change it wants.