On April 23, in Caterpillar Inc. v. NLRB, the Board found that the employer had violated Section 8(a)(1) and (5) of the Act by refusing a non-employee union representative access to the facility to conduct a health and safety inspection after a fatal accident.  In access case situations, the Board has historically reviewed the facts and circumstances under the standard articulated in Holyoke Water Power Company, 273 NLRB 1369 (1995), enfd 778 F. 2d  49 (1st Cir 1985).  The test is a relatively easy one: the Board is to balance the employer’s property rights vis a vis the employees’ right to be responsibly represented.  The Board found that the weak link in the employer’s argument was a long history of allowing third parties access to the facility.  Hence, denying access to the union was inconsistent with this provision.  But even more disturbing was the fact that, even though the Administrative Law Judge provided for the parties to bargain over an appropriate confidentiality agreement to protect the employer’s property interest in the remedy section, the Board found that inappropriate where, as in this situation, the employer failed to seek a protective order at the hearing over matters which it contended were confidential in support of its property interest.

In hindsight, the employer should have negotiated an access clause which would accommodate these concerns in the collective bargaining agreement in advance, rather than attempting to resolve them on an ad hoc basis.  The Board has recognized a union’s right to waive its rights under the Act for such access and they are relatively common clauses found in collective bargaining agreements to protect an employer’s property rights.  Takeaway: take a look at your own access clauses if something like this could affect your business.