Thursday, March 27, 2008

Employee Representatives and Chemical Facility Security

If you have been following my recent series of blogs about the newly introduced Chemical Facility Anti-terrorism Act of 2008 (for the latest see: “Record Keeping and Site Inspections under HR 5577”) you will notice that there are frequent references “employee representatives” in the legislation. There has been a lot of pressure from labor organizations to include their members in the chemical facility security process. That pressure has obviously yielded fruit.


Labor’s argument has been that due to the secrecy involved in the security process there is currently no way for outside organizations to evaluate if DHS and facility management are actually doing everything possible to provide security or just conducting a window dressing exercise. They argue that labor unions, where they exist in chemical facilities, are a natural entity to serve as an independent check on the process. Additionally, employees at a facility have a natural interest in seeing that terrorist attacks on the facility are prevented.


Any body that has seen the news about the lax enforcement by OSHA at the BP facility in Texas or the sugar facility in Georgia will have a hard time arguing that DHS will do a good job of enforcing the security regulations just because they are a government agency. It certainly makes more sense involving labor unions in the process than outside community or environmental groups.


Having said all of that, it seems to me that there are problems with this solution that have not been addressed in the legislation. These potential problems are a natural result of the adversarial nature of organized labor and management in this country and the labor laws that keep a firm separation between these two groups.


Background Checks and Employee Representatives


In an early blog in the series (see: Personnel Background Checks and HR 5577) I noted the requirement for chemical facilities to complete background checks on “individuals who have access to restricted areas or critical assets” {Section 2114(a)(1)}. An employee representative could be expected to fall under that definition. If an employer or DHS determines that such a representative failed that background investigation, it would seem to follow that that individual would no longer have access to those restricted areas. The entire facility could conceivably be defined as a restricted area.


Section 2114(f) attempts to address that by stating that:


Nothing in the section shall be construed to abridge any right or responsibility of a covered individual or covered chemical facility under any other Federal, State, local, or tribal law or collective bargaining agreement.”


I am sure that this section was never intended to require a facility to allow access to critical assets to someone that was a ‘demonstrated’ security risk. I am also sure that any attempt by management to restrict the activities of a union representative based on such a background check would result, at the very least, in an appeal to the NLRB.


CVI and Employee Representatives


In my latest blog on HR 5577 I talk about the requirement for management to provide a copy of their SVA and SSP to employee representatives. Along with this comes a responsibility for those representatives to maintain the security of those documents. If the current Chemical Vulnerability Information regulations are maintained under the new law (and nothing appears to require otherwise) this mean that DHS would have to clear those representatives before the facility was allowed to share those documents.


If DHS finds the employee representative’s name on a terrorist watch list, they will not authorize the facility to share the information. This again sets up a potential conflict between management and labor over internal conflicts between this requirement to share information and the CVI requirement to restrict the flow of information. 


If these conflicts in requirements are not ironed out before this legislation goes into effect, there will be needless delays in carrying out the other provisions of this legislation while NLRB and court hearings are heard and resolved. Anyone that thinks that labor and management will be able to work things out in a less litigious manner has not been paying attention to labor relations in the last half-century.

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