By Adrienne Markowitz and Eileen Senn
When a local association faces a health and safety problem, the first impulse may be to find a regulatory agency to intervene. While it would be ideal if there were an avenging agency ready to step in on every health and safety difficulty, the reality is not even close. Most are paper tigers—underfunded, understaffed, with weak rules that are enforced lethargically. Unfortunately, this is even true of the New Jersey Public Employees Occupational Safety and Health (PEOSH) Program.
Locals are better advised to look to their own substantial legal power in the form of negotiating and enforcing health and safety language in the contract. Violations of contract provisions are subject to a grievance filed by the association and enforceable in the grievance and arbitration procedure and with the Public Employment Relations Commission (PERC).
Under New Jersey law, all matters regarding workplace health and safety are mandatory subjects of bargaining. A failure or refusal by the board of education to enter into serious, good faith negotiations over health and safety could constitute an unfair labor practice. The local should review such a situation with their UniServ field representative.
While the grievance and arbitration process can be time-consuming, experience has shown it is almost always preferable to spinning wheels trying to get a regulatory agency to dispense justice.
Proposals for changes concerning health and safety issues should be solicited from the members just as proposals are for changes in wages, benefits, and other terms and conditions of employment. The negotiating committee should research and cost out the proposals and set priorities for negotiations. A local health and safety committee would be a valuable resource in this area.
The team should be able to represent the interests of all job classifications in the association, each of which faces unique health and safety hazards. Someone with an active interest in health and safety would be a great asset on the team.
Locals should work with their UniServ field representative to make the language specific to the situation in their association—what works for one affiliate may not work for another. However, the contract should always include a “general duty” clause that states that the board of education shall provide a safe and healthful workplace. This clause can be used to address a multitude of health and safety problems. Additional language can be crafted to address specific hazards and job categories.
The NJEA Health and Safety Manual (see box) has good examples of specific health and safety language covering these and more:
None of the gains the association makes in negotiations will help a single member unless the local leadership and the members enforce the rights they have under the law and contract. An active, well-organized leadership and membership are the keys to a successful health and safety program. Vigorous enforcement is necessary to make sure the board of education lives up to its obligations.
Health and safety problems that go unresolved and are suspected violations of contractual health and safety provisions should be referred to the local grievance committee for processing. They will investigate the case and determine the most effective manner in which to prosecute the grievance. In the course of researching the case, the association will want to interview the members who are affected by the hazardous condition and develop the evidence that establishes that a contract violation occurred. In this effort, the health and safety committee can be invaluable.
If the grievance is not resolved between the parties during the grievance hearings, the association can work with their UniServ field representative to move the case to arbitration. There the decision-making authority rests with a neutral third party appointed by PERC.
See the NJEA Health and Safety Manual, 2014, pages 29 to 32.
Adrienne Markowitz holds a Master of Science in Industrial Hygiene from Hunter College, City University of New York. Eileen Senn holds a Master of Science in Occupational Health from Temple University in Philadelphia. They are consultants with the New Jersey Work Environment Council, which is a frequent partner with NJEA on school health and safety concerns.
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