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Many employers are seeking to implement (or have already implemented) policies and programs that discipline workers who report work-related injuries, illnesses, and accidents. Discipline includes counseling sessions, verbal and written warnings, suspension, and termination. Some policies also provide for automatic drug testing for workers who report injuries.

These programs do not improve workplace health and safety, and they discourage workers from reporting job injuries or filing workers compensation claims. When injuries aren't reported, workers may not get the medical care they need, and the hazards that caused the injuries are not identified and corrected. These programs, however, benefit management. They provide management with a lower number of reported accidents for them to record on OSHA injury and illness logs, and fewer workers' compensation claims. Fewer compensation claims means lower workers' compensation insurance premiums for the employer. Fewer injuries and illnesses recorded on the OSHA logs means less frequent visits from OSHA.

WHAT CAN MY LOCAL UNION DO ABOUT THESE PROGRAMS?
Workers often ask, "Can my employer implement this kind of program?" The answer is yes and no. Injury discipline programs and policies are mandatory subjects of bargaining. In general, employers are required to notify the union before any such policy is implemented, and bargain with the union prior to implementing such a policy if the union requests to bargain.

Unfortunately, if the union does not request bargaining, management can implement the program. Labor law provides unions with a six-month window of opportunity to request bargaining from the time that they are informed about the program. If your workplace has had a program for more than six months, it can be a topic for bargaining at the next round of contract negotiations. A local union may still be able to request bargaining if local union officers were not formally notified about the new program or policy by the employer. Unions should exercise their bargaining rights by requesting to bargain over these programs (see sample letter to request to bargain), and by submitting information requests (see sample information request letter).

Information requests are the way to get information that is needed for effective bargaining over a program. Further, as long as there is a valid information request outstanding that an employer has not responded to in good faith, an employer is prohibited under the National Labor Relations Act from implementing the policy or program.

Below is a sample list of information requests for an employer who is seeking to introduce an injury discipline policy/program. There are many follow-up questions to each of these, as well as many other questions that can be submitted. Information requests should be submitted in writing. The questions below can be incorporated for use into a letter to management.

SAMPLE INFORMATION REQUESTS REGARDING INJURY DISCIPLINE POLICIES

1. Have you conducted or caused to be conducted an assessment of health and safety conditions at this workplace that have caused or could cause bargaining unit employees and/or supervisors to be injured or made ill?

   If yes, please provide a copy of any such list, report or other document that identifies such workplace conditions.

2. Have you conducted any study or analysis that led you to believe that the [insert name of new policy/program] is the appropriate program to reduce work-related injuries and illnesses at this workplace?

   If so, please provide evidence upon which you rely for this belief, including but not limited to titles of books, articles, etc. and names and addresses of organizations, and/or consultants whose information created this belief.

3. Please indicate if any of the reasons listed below are your reasons for creating the [insert name of new policy/program]:

For each of the reasons that you have checked, please provide documentation that the [insert name of new policy/program] will address, ease or cure the problem.

4. Does the company believe that the [insert name of new policy/program] will in fact reduce work-related accidents, injuries and illnesses? If yes, please provide the evidence upon which you rely for that belief, including but not limited to titles of books, articles, etc. and the names and addresses of organizations, and/or consultants whose information created that belief.

5. Do you know how many lost work hours in the past twelve months were related to supervisors and/or employees being injured or made ill on the job?

   If no, do you have any program in place or in the planning stage to make this determination?

   If yes, how many of those lost hours came from employees in the bargaining unit?

   If yes, how many different individual employees were involved in accumulating these lost hours?

   If yes, which of these employees were injured or made ill as the primary result of an at risk behavior, unsafe behavior or unsafe act and which of these employees were injured or made ill as the primary result of exposure to a health or safety hazard on their job? Provide all documentation used to support these determinations.

6. Please provide a list of all names, dates, incidences and injury, illness and/or property damage outcomes over the last five years in which supervisors and/or bargaining unit employees have failed to perform job assignments in a safe manner, with accompanying incident reports documenting this failure.

7. Please provide a list of all names, dates, incidents and injury, illness and/or property damage outcomes over the last five years in which supervisors and/or bargaining unit employees have been involved in a work-related injury, illness, or accident as a result of exposure to an unsafe or unhealthy workplace condition (hazard), with accompanying incident reports documenting the unsafe/unhealthy condition or hazard.

8. Please provide a copy of all "incident investigation forms" beginning [insert date] to the present for all salaried and bargaining unit employees.

9. Please provide a list of all OSHA recordable and nonrecordable symptoms, injuries and illnesses affecting bargaining unit employees and supervisors beginning October 1, 2000 to the present, along with accompanying incident reports detailing such symptoms, injuries and illnesses.

10. Please provide a list of all incidents that led to the destruction of property beginning October 1, 2000 to the present, including the approximate value of property damage for each incident, along with copies of incident reports regarding such property damage.

11. [Note: This question should be used only if a program is in place at your workplace that focuses on employees involved in multiple injuries, illnesses, and/or near misses.] Please provide a list of all supervisors and bargaining unit employees who have received counseling under the [name of program/policy], dates that they received counseling, and all accompanying paperwork and forms related to counseling sessions for each supervisor and/or bargaining unit employee counseled. Also indicate for each person on the list whether or not any further disciplinary action was taken regarding that individual, the date of the disciplinary action and what that disciplinary action was.

WHAT IF MANAGEMENT DOES NOT AGREE TO NEGOTIATE?
If management contends that they have the right to unilaterally implement this program or policy because of the management rights clause in the contract, or if they refuse to negotiate from the union's request, the local union should contact their international union and consider filing a charge with the National Labor Relations Board over management's failure to bargain. Most management rights clauses do not contain the "clear and unmistakable waiver" of bargaining rights that would allow management to implement injury discipline programs unilaterally.

[Nancy Lessin is Health and Safety Coordinator for the Massachusetts AFL-CIO. She has worked with unions on "blame-the-worker" safety programs and on the impacts of work restructuring and downsizing/understaffing. If you would like more information, contact her at nlessin@att.net.]