Obama Holdovers May Have Broken Federal Law By Approving A ‘Major Shift’ In How Union-Free Workplaces Are Treated

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Tim Pearce Energy Reporter
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  • The U.S. Chemical Safety and Hazard Investigation Board (CSB) passed a board order last week that substantially changed the way the agency conducts investigations, according to labor attorney Eric J. Conn.
  • The CSB claims the board order codifies existing policies and did not seek feedback on the order from outside groups except for an open-to-the-public board meeting.
  • The CSB’s board order may violate the Administrative Procedure Act by creating new regulations without seeking outside comment from interested parties.

The U.S. Chemical Safety and Hazard Investigation Board (CSB) may have violated federal law last week when the agency approved a “major shift” in policy without formally inviting input from interested parties, labor attorney Eric J. Conn told The Daily Caller News Foundation.

CSB board members Kristen Kulinowski and Rick Engler approved Board Order 40a in an Oct. 24 board meeting. The board’s third member, Manuel Ehrlich, did not vote on the measure. (RELATED: EXCLUSIVE: Obama Holdovers ‘Working Toward A Union Takeover’ Of US Chemical Agency)

All sitting board members are holdovers from the Obama administration serving out 5-year terms. President Donald Trump has not nominated any new board members to fill the two currently empty spots on the board or replace any of the sitting members. Trump has proposed abolishing the agency twice in his 2018 and 2019 budget proposals, though Congress opted to fund the agency anyway.

“The biggest difference, if you look at [the board order], is how non-union workplaces are handled,” Conn, who chairs the national workplace safety practice of Conn, Maciel and Carey LLC, told TheDCNF Tuesday. “It may violate Administrative Procedure Act,” which governs how executive agencies implement new rules and regulations.

The CSB passed Board Order 40a as an addendum to a 2012 board order governing employee involvement in CSB investigations. The addendum codifies policies that are already in place in one public document, the CSB told TheDCNF.

“The Board’s actions at its [Oct.24] public meeting restate a current and long-standing policy into one concise public document,” the CSB said in a statement Sunday. “Since 2012, the Board has had a policy about encouraging worker participation in our investigations, in the same manner as management. By making this a public document, the Board continues its commitment to ensuring greater transparency in how we conduct our safety investigations.”

Pictured is Kristen Kulinowski. (Image source: U.S. Chemical Safety and Hazard Investigation Board)

Some of the procedures outlined in the addendum do not resemble any practice CSB investigators are currently following in non-union workplaces, according to Conn.

The 2012 board order set down procedures where a representative employee, chosen by the non-union workforce, would serve as a liaison with CSB investigators and aid in the investigation. The order codified practices in wide use by other federal agencies, Conn said.

“This new addendum really creates this, almost like, ‘drop your tools and join in the CSB investigation, all are welcome,’ sort of mentality, which is not how other agencies handle this,” Conn continued. “It actually calls for a broader group of employees to participate rather than a representative employee.”

The employee or group of employees would be picked by the head CSB investigator to assist in the investigation for an undetermined amount of time while continuing to be paid by the company.

Pictured is Rick Engler. (Image source: U.S. Chemical Safety and Hazard Investigation Board)

Board Order 40a also changes how CSB investigators treat confidential business information that companies hand over to the agency while it investigates accidents.

“Ordinarily, that’s a decision that is made by the employer — how to identify documents that should be protected,” Conn said. “If you read this memo, the suggestion here is that those documents that the CSB deems on its own judgment to not be worthy of protection as confidential business information can and will be shared with employees during the investigation process.”

Section 8 of the board order says, “[A]ny form of interference with CSB investigations may be reported to Federal law enforcement as obstruction of a Federal investigation.”

“I view it as a threat,” Conn told TheDCNF. “I mean I think the employers understand employees’ right to participate. Those rights are being expanded by this memo without rule making, and accompanying that expansion is a threat of, you know, retaliation.”

Engler, one of the two CSB members that passed Board Order Addendum 40a, has a documented past of coordinating with environmentalists and unions to push certain policies and initiatives. Former Texas Republican Rep. Blake Farenthold called in February for an inspector general investigation into Engler’s conduct for working with union activists to pressure Congress for funding.

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