Using Contract Language to Strengthen Health and Safety in the Workplace Diane Matthew Brown, MS, CET AFSCME International 8/30/2012.

Using Contract Language to Strengthen Health and Safety in the

Workplace

Diane Matthew Brown, MS, CET

AFSCME International

8/30/2012

Objectives

• Why Negotiate?

• Preparing For Bargaining

• Recommended Clauses

• Strategies

• Justifying the language: $ and cents

• Review sample language

Why negotiate Health and Safety language?

• State Laws and their enforcement can be undermined by political forces

• There will NEVER be enough inspectors to protect workers

• Protect workers from discrimination• Deal with health and safety issues that

have no laws• The Union has a say in creating a safe

work place

Preparing to Bargain

• Review relevant laws, standards and codes and identify weaknesses or gaps

• Review the current contract-what’s there –what isn’t? Use checklist

• Survey membership-particular concerns

• Review past grievances on health and safety-how effective were they?

• Talk with your health and safety committee if one exists

Must -haves

• General Duty

• Health and safety committee

• Dealing with emergencies

• Refusal to Work/Imminent Danger

• Reporting Unsafe Conditions

• No Discrimination

General Duty Clause• Employer Responsibility• Duty to provide a safe and sanitary

work place free of recognized hazards• Recognized standards can include

health codes, fire and building codes• Catch-all: covers hazards where there

are no OSHA or State Standards• Correct unsafe conditions• Union is not liable

The Labor-Management Health and Safety Committee

• Equal representation between labor and management

• Union selects their members-not appointed

• How committee chairs are selected• How often it will meet• On work time• Duties and Responsibilities• Accountability

Committee Basics

• Training for the Committee• Ability to gather information and access to records• Ability to investigate complaints• Ability to do walkthroughs• Incident Investigation• Minutes of Committee meetings and other

communications• Rights of the Local Union Health and Safety

committee

Dealing With Emergencies

• Deal with the traditional emergencies, such as fire, medical emergencies

• Terrorism and bomb threats

• Evacuation vs. shelter in place

• First Aid, CPR and now AED

• Emergency Action Plan-who has it, how to get it

Right To Refuse

• No worker should have to choose between their job and his/her life

• US Supreme Court ruled in Whirlpool vs. Marshall- “reasonableness”

• Contract can expand on this-worker is acting in good faith

• Procedures for refusing to work in unsafe conditions should be spelled out in the contract

• Refusing to operate unsafe vehicles is also important-especially for CDL drivers

Sample Right to Refuse

• “The right of an employee to: (a) refuse to accept an assignment or a job which the employee has reason to believe is hazardous or is performed under hazardous conditions; (b) refuse to report to work because the employee has reason to believe that travel to or from work, or work at the employee’s place of work is hazardous, is hereby confirmed.”

Newspaper Guild Model Contract

Procedures for Reporting

• Place clear, concise language on how workers are to report unsafe conditions– Supervisor– Health and safety committee

• Recourse if situation is not corrected

• Specific time frames

• Accelerated grievance procedure

No Discrimination

• In order to create a safe workplace-employee participation is crucial

• Workers continue to be discriminated against for reporting safety hazards or refusing to work in unsafe conditions

• Must protect the worker-similar to whistleblower language

• Ramifications for violation

Sample No Discrimination

“The Employer shall assure that no employee is subject to restraint, interference, coercion, discrimination, or reprisal for filing a report of unsafe or unhealthy working conditions, or other participation in agency occupational safety and health program activities”

AFGE and Social Security Administration 1996

Specific Hazards• Language should refer to “recognized standards”

or the specific OSH standard, if applicable• Extreme weather conditions• Highway: work zone safety, PPE, vests• Schools: indoor air, infectious diseases, chemicals,

violence• Public Works, water/wastewater: confined space

entry, trenching and excavation, lockout/tagout • Hospital/Healthcare: Ergonomics, violence,

infectious disease

What if there are no standards?• Many emerging health and safety issues

have no OSHA standards• Examples:

– Indoor Air Quality and mold issues– Workplace Violence– Ergonomics (not just office workers!)– Infectious Diseases (pandemic flu)

• Language is crucial for these issues because there is no agency to fall back on

• Reference recognized industry standards or guidelines in the language (ANSI, NFPA, CDC, ACGIH, NIOSH, ASHREA)

Other things to consider

• How to report injuries

• Dealing with the Workers Compensation System

• Return-to-work and light duty

• ADA and other accommodations

• Personal Protective Equipment

• Going beyond OSHA standards

Strategies• Don’t settle for just personal protective

equipment to solve health and safety problems-always refer back to the hierarchy of controls

• Use “shall” in your language whenever possible

• Training alone doesn’t solve health and

safety issues

• Beware of “No Tolerance” language

• Be prepared to sell it to the membership!

Justifying the Contract Proposal

• Many employers balk at health and safety language citing costs

• Many employers link safety to PPE

• Be prepared to have figures on:– Number of lost work days– Amount of overtime in depts. where injuries

have occurred– Workers Compensation costs/premiums– Lost time on projects due to injuries or

damage

Justifying the Contract Proposal

• SAFETY=PRODUCTIVITY-incidents costs $ even if no one is hurt

• Best use of tax dollars-injuries and illnesses cost $ and that $ comes out of the taxpayers’ pockets

• Determine if there are other funds (grants) to help pay for some items

Justifying the Contract Proposal

• Link safety of employees to the safety of the public:

– Schools

– Hospitals

– Vehicles

– Hazardous materials and the environment

Writing the Effective Grievance

• In addition to the contract section, when grieving a specific safety violation, state the title number and chapter – e.g. Hazard Communication 29 CFR

1910.1200

• When grieving something under general duty, restate article and the clause in the grievance

Writing the Effective Grievance

• If citing a code other that OSHA, such as building, fire or health codes, state the code number and last revision date– e.g. NFPA 101 Life Safety Code 2003

• Provide a solution! A piece of machinery, training, updated procedures, or a combination of controls to solve the health and safety issue

Summary• Negotiating health and safety contract

language is necessary to fill in the gaps of State and Federal laws and enforcement

• In addition to general duty, language on committees, emergencies, right to refuse and discrimination should be included

• Survey incident logs, past grievances and member concerns when considering language

• Draft language that covers health and safety issues not addressed in current regulations