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Thursday, March 15, 2012

CSB to Increase Participation of Non-Management Employees – At the Expense of Employers

Another update from Epstein, Becker, Green.


The U.S. Chemical Safety and Hazard Investigation Board (CSB) announced earlier this month a new policy disguised as a nod to enhancing employee participation in CSB investigations, but which may actually represent a dramatic limitation in the investigation rights of both employees and employers.

The new policy expands the role of non-management employees in the CSB’s investigations into the causes of chemical accidents that occur at industrial facilities, but does so at the expense of employers’ involvement and employees’ rights.

By way of background, the CSB was created under the Clean Air Act, but does not report under the EPA, nor does it fall under the Department of Labor.  Rather, the CSB is an independent, non-enforcement federal agency charged with investigating industrial chemical accidents.  While the CSB investigates many of the same incidents as the Occupational Safety and Health Administration (OSHA), the CSB distinguishes itself from OSHA in key ways, and really fancies itself as a sister agency to the National Transportation Safety Board (NTSB).  Like the NTSB, which conducts investigations of transportation related incidents, and issues reports and recommendations but not citations or fines, the CSB conducts root cause investigations of chemical accidents at fixed industrial facilities, and issues reports and recommendations but no penalties.

During its investigations, CSB investigators request (or subpoena) records, interview management and non-management employees, evaluate physical evidence, and review applicable regulations and industry practices.  Following its investigations, the CSB holds public meetings to review its finding, and drafts public investigation reports or case studies that include safety recommendations issued to companies, government agencies (often OSHA), trade associations, local governments, labor unions, and other entities.  Although CSB recommendations are technically non-mandatory, CSB tracks the implementation of its recommendations, and uses public shaming to compel employers and others to adopt the recommendations.
Below are the key differences between the manner in which the CSB and OSHA carry out their respective missions:
  1. Unlike OSHA, which has a six-month limitations period to complete its inspections and issue citations, the CSB has no time limit.  Indeed, it is not uncommon for CSB investigations to last more than a year;
  2. Whereas OSHA issues citations that carry monetary penalties, require mandatory abatement, and can result in criminal charges, the CSB issues “non-mandatory” recommendations following its investigations;
  3. In addition to the public shaming related to its recommendations, the CSB is also known for making public statements early and often about its on-going investigations, preliminary findings, interaction with the employer, and just about anything else, unlike OHSA, which, by policy, makes no public comments as to active matters; and
  4. While both agencies frequently make critical mistakes in their findings, OSHA citations can be contested before a body of administration law judges, but because the CSB is a non-enforcement agency, there is no venue to which employers can appeal to correct the CSB’s flawed reports and recommendations (not even by attaching formal comments to CSB’s official reports, like its “sister agency” the NTSB allows).
Another key difference between OSHA and CSB investigations is that OSHA excludes management representatives (e.g., the employer’s attorney) from non-management interviews, but the CSB has historically allowed employer’s representatives in interviews of employees.  The new policy articulated by the CSB in March 2012 includes a policy shift that strikes a major blow to employers’ and employees’ rights in CSB investigations.  The policy states:
“During CSB interviews, any non-supervisory employee may be accompanied by another non-supervisory employee, a personal attorney, or a family member as described in 40 CFR 1610.”
Under 40 CFR 1610.1(a), witnesses who are compelled to appear for interviews are entitled to have counsel present.  Based on CSB’s specific identification of a “personal attorney” or “fellow non-supervisory employee” as acceptable persons to accompany employees in interviews, however, it appears the CSB plans now to exclude company counsel from appearing with non-management witnesses, even if the witness expressly requests that specific attorney as his representative.

While the CSB Chairman stated that “effective employee participation” is the fundamental purpose of the new policy, and that information from employees is the most useful source for CSB understanding a facility’s day-to-day operations, it is troubling that the CSB intends to actually strip away employees’ rights by limiting their choice of interview representative.  It is even more troubling that just as the CSB praises the value of employee participation, they trample on the rights of participation of employers, who design and build the facilities where the accidents occurred, who manage the operations that were involved in the incidents, and who have access to valuable institutional knowledge not available to many non-management employees.

Furthermore, given that CSB findings and recommendations are publicized and used to shame allegedly bad actors, and employers have no venue to challenge errors and misstatements in CSB reports and recommendations, it is even more troubling that the employer is now going to be excluded from key aspects of the investigation process.  Employers have successfully challenged under the Administrative Procedure Act (APA), OSHA’s exclusion of management representatives from non-management interviews.  The same rationale for those challenges should apply in the CSB context as well.  Accordingly, provided the non-management employee and the employer waive any potential conflict of interest, and the employee is not pressured to select a management representative as his interview representative, this new CSB interview policy likely violates the APA, and should be challenged on behalf of employees who desire to have company counsel participate in their interviews.

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