This win by our union is timely in that some paper companies are trying to go to health and safety programs that focus on worker behavior. In this case a National Labor Relations Board (NLRB) administrative law judge ruled a tool maker must bargain with its union over a new safety program it introduced that resulted in workers getting disciplined for safety violations and injuries.

USW Local 5518 filed NLRB charges July 30, 2010 when Kennametal, Inc., a tool maker, failed to bargain over implementation of its Management Based Safety (MBS) program at its Lydonville, Vermont plant. The company’s unilateral implementation of a new discipline policy for safety violations was also an integral part of the NLRB case.

Kennametal announced implementation of its corporate-wide MBS program on Feb. 2, 2010 and the union requested that the company bargain over its implementation the next day. The company refused, claiming it was not a mandatory subject of bargaining. It also asserted that its discipline policy for safety violations—called Procedure for Corrective Actions for Safety Violations and Work Instructions for Corrective Actions—had no relationship to MBS.

The change in discipline policy meant that a first-time serious safety violation resulted in a three-day suspension and a second serious violation brought termination.

Relationship to MBS

The NLRB General Counsel and union contended the use of these documents in the discipline of two workers for alleged safety violations showed the new safety discipline policy was sufficiently related to MBS to require negotiation with the union over its implementation.

Other evidence showing a link between the company’s disciplinary policies and MBS was that in one of the documents it stated that counseling or disciplining employees was one of the ways Kennametal intended to improve its safety record through MBS.

In his April 12, 2011 decision, NLRB Administrative Law Judge (ALJ) Arthur J. Amchan rejected the company’s contention that its discharge and disciplinary policies had nothing to do with MBS. He noted that MBS eliminated the union’s participation in accident investigation, contrary to the provisions of the collective bargaining agreement.

By changing the investigation process, Kennametal diminished the possibility that factors such as production quotas would be considered in assessing the cause of an accident. The ALJ wrote that MBS, in making it more likely an injured worker would be found at fault for an accident, had a “clear relationship to disciplinary measures taken as the result of an accident.”

Local 5518 also contended that the company violated the National Labor Relations Act (NLRA) by refusing or failing to provide information requested by the union in two instances and by unreasonably delaying provision of information in one instance.

Discipline Policy

In determining whether Kennametal changed its disciplinary policy unilaterally, the ALJ found that inadequate notice had been given to the union regarding the policy change. The company generated the Procedure and Work Instructions documents in February 2009. Testimony from union officials and a day shift supervisor revealed nothing had been posted about suspension and termination for safety violations and that the union did not receive notice of the change in disciplinary policy until January 2011. In violation of the contract, the company also did not inform the union of the change in policy via certified or registered mail.

The ALJ noted that implementation of the new discipline policy for safety violations was a material change in Kennametal’s past practice of a progressive discipline policy and thus should be bargained over and not changed unilaterally. Unilateral abandonment of the past practice of progressive discipline for safety violations violated the NLRA, wrote the ALJ.

The ALJ also wrote that by converting any significant safety violation or injury into just cause for discipline or discharge, the company materially modified the parties’ contract and it did so without providing the union with notice of this change and an opportunity to bargain about it.

MBS Program

In July 2010 Kennametal installed laminated white boards in every production area of the plant. Next to the boards were laminated check lists for each production operation. In the Lydonville facility there were about 40-50 check lists. The company did not consult with the union over these lists and their content.

Before MBS was implemented the union’s safety committee was actively involved in investigating accidents at the Lydonville plant. The company and union safety committee members worked jointly in addressing issues concerning accidents. The union’s involvement in accident investigation stopped when MBS was put into play. 

The ALJ wrote: “A change in an employer’s investigatory method, which as in this case, substantially alters the mode of investigation and character of evidence on which an employee’s continued job security might hinge, is a bargainable change in the terms and conditions of his or her employment. By unilaterally cutting the union out of the investigation of accidents in situations in which the investigation could lead to serious disciplinary consequences to the injured employee, respondent (Kennametal) violated Section 8(a)(5) and (1) (of the NLRA).” Local 5518 filed a grievance on Jan. 14, 2011 regarding its exclusion from accident investigations.

After reviewing the record of disciplinary actions, the ALJ saw that the company escalated its disciplinary punishments for safety violations and accidents at virtually the same time that it introduced MBS at Lydonville.

NLRA Violations

The ALJ determined Kennametal violated Section 8(a)(5) and (1) of the National Labor Relations Act by:

1. Failing and refusing to bargain with the union over implementation of the Management Based Safety Program, as it required employees to take such actions as initialing agreement or is agreement with the safety check list on its white boards upon threat of discipline for not doing so; 
2. Excluding the union from accident investigations;
3. Unilaterally implementing and/or more strictly enforcing its disciplinary policies for safety violations;
4. Suspending one employee and terminating another under its stricter disciplinary policy that was not negotiated with the union;
5. Failing and/or delaying the furnishing of information the union requested that was necessary for and relevant to the union’s duties as collective bargaining representative of the company’s employees.

AlJ’s Order

Kennametal was ordered to cease and desist from:

1. Unilaterally changing bargaining unit employees’ wages, hours and/or terms and conditions of employment by such means as, but not limited to, implementing a new discipline policy for safety violations or more strictly enforcing its discipline policy for safety violations;
2. Unilaterally implementing its Management Based Safety Program that excludes union participation in accident investigations and/or results in the imposition of discipline for an employee’s failure to comply with requirements unilaterally imposed pursuant to the MBS program;
3. Failing or delaying the providing of information to the union that is necessary and relevant to its role as the exclusive collective bargaining representative of production and maintenance employees at its Lydonville facility;
4. In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the NLRA.

Among the actions the company was ordered to take were:

1. The reinstatement of the employee fired and to make him and the other worker suspended whole for any loss of earnings or benefits as a result of the disciplinary actions taken against them;
2. Furnishing of information the union requested.
3. Reinstituting an accident investigation process that involves the union and is in accordance with its 2005-2010 collective bargaining agreement;
4. Posting a notice to employees of what it is ordered to do.

Click Here for a copy of the NLRB decision