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Part II of our Post on Corporate Campaigns using safety to harm a company's reputation, and in the case of Tesla, compel the Company to give in to Union demands. This part concludes the discussion by describing the variety of attack strategies and proposing commonsense steps to improve one's safety culture and deny a group's ability to destroy your company's reputation using safety as a club.

Solicitor Smith did not announce any positions that we have not discussed, but she confirmed our opinions on the Administration’s priorities and their intentions as they energetically finish their term.

We’re going to comment on the numerous policies and rules which must be revised because of the NLRB’s many changes last year; especially during December 2014. Today, we’ll briefly discuss email.

On September 4, the Whistleblower Protection Advisory Committee (WPAC) unanimously voted in favor of several revisions to the OSH Act that would expand protection for workers who are retaliated against for raising health and safety concerns at their workplace.

Electronic communications are a mixed blessing. Business is more efficient and new ways of commerce continue to open. However, ubiquitous electronic communications have eroded our personal time and presented near-addicting distractions. From a legal standpoint, electronic communications, and especially e-mails, not only create damaging evidence but may even contribute to legal claims.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) and the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) recently signed a Memorandum of Understanding to “facilitate coordination and cooperation” between the two agencies concerning the anti-retaliation provision of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, and the anti-coercion provision, 49 U.S.C. § 31136(A)(5). The STAA shields drivers of a commercial motor vehicle (CMV), including independent contractors, from termination, discipline or other retaliation for reporting or engaging in protected activity regarding CMV safety, health or security conditions. The anti-coercion provision gives the Secretary of Transportation authority to prescribe regulations to ensure that a CMV driver is not forced to operate a CMV in violation of federal safety regulations. The Memorandum provides for the exchange of safety, coercion and retaliation allegations that are received by one agency, but are under the purview of the other agency, and sets forth the process for doing so.

Preparing For Union Embarrassment Tactics
The areas of labor, employment, and safety exposure which present very real threats to the distribution industry.

MSHA announced on September 25, 2013, the release of a new Guide for Miners' Representatives. According to MSHA, this Guide is a "comprehensive tool" that expands upon the Guide to Miners' Rights and Responsibilities, released in June 2011. Assistant Secretary Joseph A. Main stated "A good safety and health program depends upon the active participation and interest of everyone at the worksite. In order to help decrease workplace deaths, injuries, and illnesses, miners and their representatives must have sufficient knowledge of their rights so that they can fully and properly exercise them." MSHA provided more detailed information about: reporting hazardous conditions and imminent dangers, accident investigations, understanding the elements of discrimination under Section 105(c) of the Mine Act, health and safety training, petitions for modification of a safety standard, rights to information and records, civil penalties and requests under the Freedom of Information Act.

Despite the DOL’s continuous promotion of whistleblower/retaliation claims, I don’t believe that employers appreciate the sheer variety of ways in which disgruntled employees can claim that the employer retaliated against him for complaining or raising issues related to safety, environmental, wage-hour, discrimination, or numerous other subjects.

A few hours ago, the Senate confirmed the new secretary of Labor, Thomas Perez and EPA Director, Gina McCarthy. Along with two newly nominated Democrat members of the NLRB, signs suggest that we may see an even more activist administration in labor, employment and safety matters. Secretary of Labor is a former tough litigator and deal-maker from the DOJ's Civil Rights Division. Based on his record, we seriously doubt that he will be as ineffectual as the previous Secretary. Expect yet more support for OSHA's emphasis on whistle blowing claims, and for such claims in all DOL agencies. I suspect that we may see more aggressive creation of policy through "Interpretations" and an even heavier Federal involvement in State-OSHA plans. While much of the criticism leveled at EPA nominee McCarthy seemed directed more toward the EPA generally, some law makers termed Mr. Perez too activist.

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