                                 In the

     United States Court of Appeals
                   For the Seventh Circuit
                      ____________________


Nos. 14-3528 & 14-3729
CATERPILLAR INC.,
                                          Petitioner/Cross-Respondent,

                                   v.

NATIONAL LABOR RELATIONS BOARD,

                                          Respondent/Cross-Petitioner,

                                  and

UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTUR-
 ING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS IN-
 TERNATIONAL UNION, AFL-CIO CLC, *
                                    Intervening Respondent.
                      ____________________

                Petition for review and cross-application
                   for enforcement of an order of the
                     National Labor Relations Board.
                            No. 30-CA-064314
                      ____________________


*This is the official name of the union commonly referred to as the Unit-
ed Steelworkers union.
2                                         Nos. 14-3528, 14-3729


    ARGUED SEPTEMBER 9, 2015 — DECIDED OCTOBER 2, 2015
                 ____________________

    Before POSNER, MANION, and HAMILTON, Circuit Judges.
    POSNER, Circuit Judge. We are asked to review an order by
the National Labor Relations Board requiring Caterpillar Inc.
to allow a union official to investigate the site of a fatal acci-
dent to a worker represented by a local of the union.
    An Illinois company, Caterpillar is one of the world’s
largest manufacturers of construction and mining equip-
ment, diesel and natural gas engines, industrial turbines,
and diesel-electric locomotives. In July 2011 it bought from
Bucyrus International a factory in South Milwaukee that
manufactures large strip-mining equipment. As a result of
the purchase Caterpillar replaced Bucyrus as the employer
party to a collective-bargaining agreement that Bucyrus had
made with a local of the United Steelworkers union.
    The factory has a weld shop where employees manufac-
ture “crawlers,” which resemble the tracks of a bulldozer or
tank. Giant cranes lift the crawlers and move them to speci-
fied locations in the shop. Just two months after Caterpillar
acquired the factory, a crane operator who was a member of
the bargaining unit represented by the local union was killed
when a 36-ton crawler crushed him after shifting unexpect-
edly while being rotated by the crane. He had been lying on
the ground underneath the crawler in order to be able to un-
hook one of the chains attaching it to the crane. (The compa-
ny’s brief analogizes an investigation of the cause of the ac-
cident to an investigation of a “leaky faucet.” That was in the
poorest possible taste—an insult to the memory of the dead
man.)
Nos. 14-3528, 14-3729                                      3


    The company promptly reported the death to the local
police department and to the federal Occupational Safety
and Health Administration. Police officers, and agents of
OSHA, along with company executives and officials of the
local union, converged within hours on the accident scene.
The local union’s officials who visited the scene were not,
however, safety specialists. The statement in the company’s
brief that “multiple local union officials participated in a
comprehensive post-accident investigation, including assist-
ing with a videotaped reenactment,” is culpably misleading.
   The local union’s president called the national union’s
emergency response team at its headquarters in Pittsburgh
and spoke to an experienced health and safety specialist
there named Sharon Thompson, who has investigated a
number of fatal accidents; at oral argument the company’s
lawyer told us the company doesn’t question her credentials
as an investigator of fatal accidents to workers represented
by the steelworkers union.
   The president of the local union informed Caterpillar’s
manager for the region that includes the factory in which the
accident had taken place that a member of the national un-
ion’s emergency response team would be coming to inspect
the accident site. The manager promised to cooperate with
that person but changed his mind later that evening and told
the local union’s president that the proposed inspection
would have to be cleared with the company’s legal depart-
ment.
    The accident had occurred in the afternoon, and that
evening the company had one of its crane operators partici-
pate in a videotaped reenactment of the accident. The offi-
cials of the local who had been present at the accident scene
4                                       Nos. 14-3528, 14-3729


were not at the reenactment because they were not notified
of it. The crane operator, though a member of the local un-
ion, participated in the reenactment solely in his capacity as
an employee told what to do by the company, rather than as
an observer on behalf of the union.
    Thompson arrived at the factory the day after the acci-
dent, but the regional manager who had promised to coop-
erate with her refused to allow her to enter the factory with-
out “permission from Cat[erpillar] legal to be on the premis-
es.” When that permission was denied, the union com-
plained to company officials, but was rebuffed; the company
took the position that because it was cooperating with the
police and with OSHA, no further investigation of the acci-
dent was warranted. The company was however willing to
allow Thompson to view the videos of the reenactment, pro-
vided that the union would sign a confidentiality agreement.
It did so and received the videos, but deemed them an inad-
equate substitute for an on-site investigation by Thompson.
She testified that none of the other materials offered to her
by the company—standard work protocols, a letter describ-
ing some aspects of the crane procedure, and the police re-
port—were adequate substitutes either. Caterpillar contends
that the Board’s order that Thompson be permitted to in-
spect the weld shop, where the accident occurred, en-
croached on “Caterpillar’s legitimate rights to control its op-
erations and property.” Not so; Thompson’s site inspection
would not have interfered with the operations, or the com-
pany’s control, of the plant.
   OSHA fined Caterpillar for contributing to its employee’s
death by failing to “furnish employment and a place of em-
ployment which were free from recognized hazards … likely
Nos. 14-3528, 14-3729                                         5


to cause death or serious physical harms to employees from
crashing hazards.”
    The cause of the accident has never been determined. The
union (which continues to represent the employees in the
weld shop) hopes that even now, years later, an investiga-
tion by Thompson or some other members of the national
union’s emergency response team might ascertain the cause
and by doing so be able to suggest changes in equipment or
operation that would reduce the likelihood of a future such
accident. But the company has steadfastly adhered to its re-
fusal to allow her or any other union investigator onto the
premises. It argues that passage of time has mooted its disa-
greement with the union over allowing Thompson to inves-
tigate. That’s false. Because the cause of the accidental death
of the crane operator has never been determined, no serious,
reliable measures to avoid a recurrence have been taken, or
can be until the cause of the accident is determined—
something the company appears to have no interest in. Alt-
hough Caterpillar claims to have made safety improve-
ments, no one can know whether they will prevent future
accidents because no one knows what caused this accident.
    Even if an investigation of the accident at this late date
would be bound to be fruitless, the case would not be moot,
because rescinding the Board’s order would allow the com-
pany to continue to deny the union access to future accident
sites. The company’s choice to clean up such sites quickly
cannot be allowed to defeat judicial review. For the issue is
not (or not only) whether exactly this sort of accident is like-
ly to happen. The issue is whether Caterpillar will deny ac-
cess to union safety investigators in future accidents of any
kind. The company does not claim to have changed its poli-
6                                         Nos. 14-3528, 14-3729


cy—it stands by it steadfastly—and so its denial of union in-
spection rights will be bound to recur if and when there is
another accident. Imagine a case in which the company con-
ducts its own, superficial investigation, quickly decides to
blame the accident on carelessness by the victim, and then
denies access to a union investigator on the ground that
there is no need for further investigation. That sounds more
like a violation of the union’s, and their members’, rights
than like a moot case.
   The company’s obduracy resulted in the union’s com-
plaining to the National Labor Relations Board, which ren-
dered the decision challenged by Caterpillar in this court,
ordering the company to allow Thompson (or some other
investigator designated by the union) to conduct an on-site
investigation.
     Employees have the right to “engage in … concerted ac-
tivities for the purpose of collective bargaining or other mu-
tual aid or protection,” 29 U.S.C. § 157, and an employer’s
violation of that right is an unfair labor practice. § 158(a)(1).
It is also an unfair labor practice for an employer to refuse to
bargain collectively with the union representatives,
§ 158(a)(5)—and “bargaining” includes providing infor-
mation that the bargaining representative needs. NLRB v.
Acme Industrial Co., 385 U.S. 432, 435–36 (1967). The Board
held that Caterpillar had violated these rights, Caterpillar
Inc., et al., 361 N.L.R.B. No. 77 (Oct. 30, 2014), and the com-
pany’s petition for review of the Board’s order followed.
Were Thompson allowed to conduct an on-site investigation,
and in the course of it discovered lax safety practices that
might have caused or contributed to the accident, the correc-
Nos. 14-3528, 14-3729                                       7


tion of those practices would be a proper matter for collec-
tive bargaining.
    Yet the company stands on its property rights. It’s the
owner of the factory in which the accident occurred and it
allowed police and OSHA staff in and videotaped the reen-
actment and showed the videos and the police reports to the
union’s investigator, and it says that’s good enough. It might
have been good enough if, on the basis of what the police
and the OSHA staff learned and the videos revealed, the
company had discovered the cause of the fatal accident and
taken measures to prevent any repetition of it. But the cause
was not discovered, and a union is not required to accept
company data as being the last word on a safety issue. Her-
cules, Inc. v. NLRB, 833 F.2d 426, 429 (2d Cir. 1987).
    The cause of the accident remaining to this day un-
known, the chances that Thompson or some other member
of the national union’s emergency response team will suc-
ceed, where OSHA failed, in determining the cause this long
after the accident may well be small. But they are not zero.
And Thompson may discover safety problems that could
have contributed to the accident even if she proves unable to
determine a single definitive cause.
    At the oral argument Caterpillar’s lawyer admitted that
allowing Thompson to conduct an on-site investigation,
which would last only a few hours and would not interfere
with the factory’s production, would cause “no actual harm”
to the company. And the company has abandoned the ar-
gument that it made to the Board that if allowed to conduct
an on-site investigation Thompson might come across confi-
dential materials—and anyway the union has as we noted
signed confidentiality agreements with the company. More-
8                                         Nos. 14-3528, 14-3729


over, Caterpillar and its predecessor, Bucyrus, had permitted
politicians, customers, dealers, civic groups, and high school
students to tour the factory—including the weld shop, in
which the fatal accident occurred—without requiring them
to sign confidentiality agreements.
    The balance between the company’s and the union’s in-
terests favors upholding the Board’s order that the union be
permitted to conduct such an investigation. See Holyoke Wa-
ter Power Co., et al., 273 N.L.R.B. 1369 (1985). The cost to the
company would be negligible, and the benefit to the union
would not be limited to the probability that Thompson’s in-
vestigation would uncover the cause of the accident, though
such a discovery might well lead to changes in the weld
shop that would reduce the likelihood of a future accident.
The union would also be demonstrating its right and ability
to look out for the safety of the employees whom it repre-
sents, rather than leaving their safety entirely at the mercy of
the employer. So “absent access to the accident site the Un-
ion could not fulfill its obligation to represent the employ-
ees.” ASARCO, Inc. v. NLRB, 805 F.2d 194, 198 (6th Cir.
1986).
     We can’t exclude the possibility that the company’s un-
explained, unjustified refusal of access to Thompson was in-
tended not only to prevent the union from investigating
safety issues and perhaps discovering negligence by Cater-
pillar but also to demonstrate to its employees that the union
can do nothing to enhance their safety. The union’s duty to
attend to the safety of the employees whom it represents en-
titles it to insist on performing its own investigation of safety
issues, rather than relying entirely on data given it by the
company. See Hercules, Inc. v. NLRB, supra, 833 F.2d at 429.
Nos. 14-3528, 14-3729                                        9


    The superficially strongest plank in the company’s ar-
gument is the videos. Given them, it argues, what more
could Thompson need by way of information on which to
base her advice for preventing a similar accident in the fu-
ture? But one has only to view the videos, as we have done,
to realize the shallowness of the argument. The videos have
no text and no voice or other sound except unexplained
background noise. They are very brief, and of course two-
dimensional. They show—from one side only—a crawler
hanging from a chain and being lowered slowly to the floor
or raised from it, while being moved slowly from side to
side. No one (human or dummy) is under the crawler. Alt-
hough a worker occasionally appears in the videos, that is
the only indication of scale, and as his height is not indicat-
ed, or the angle from which the videos were shot, it is diffi-
cult to estimate the dimensions of the objects shown in them.
Apt here is the famous (if strangely titled) article by David
Foster Wallace, “Federer as Religious Experience,” New York
Times, August 20, 2006, explaining that much is lost in at-
tempts to translate a three-dimensional scene into a two-
dimensional photograph or video of a scene.
    Nothing in Caterpillar’s videos so much as hints at an ac-
cident. To say that they depict a reenactment of the accident
is absurd. Given the absence of text and sound it is impossi-
ble to understand what, relative to the accident, the videos
demonstrate. Although the accident appears to have oc-
curred because the crawler shifted a few inches unexpected-
ly when it was already resting partially on the ground, no
such shift is visible in the videos. They provide no clue to a
possible cause of the accident—as confirmed by the fact that
the cause of the accident remains to this day undiscovered.
10                                        Nos. 14-3528, 14-3729


    A second reenactment was staged about a week after the
first. One might have expected the company to invite
Thompson to the reenactment, as it would provide more in-
sight than the videos. Needless to say, she was not invited
and therefore not present. That second reenactment, by the
way, vitiates the company’s argument that “after the day of
the accident, there was no additional information to be
gleaned from on-site review of the scene, because the
equipment had been moved, the area cleaned, and opera-
tions resumed.” Why moving the equipment, cleaning up,
and resuming operations would have rendered on-site in-
spection worthless is left unexplained—and if there was no
information that could be obtained about the accident after
the first day, why did the company conduct a reenactment a
week later? Besides, if an on-site review by the union would
have been doomed to futility, why did the company make
such efforts to prevent the inspection?
    Earlier we cited the Second Circuit’s decision in the Her-
cules case. The Labor Board’s decision upheld in that case
contains some pungent observations that are pertinent to the
present one: “In no sense then, is there merit to Respond-
ent’s argument that whatever rights the Union has to access
are to be nullified because OSHA conducted an investiga-
tion.” Hercules Inc., 281 N.L.R.B. 961, 964 (1986). “It defies all
reason to maintain that the cause of the accident could be
analyzed without a physical examination of the premises … .
Although witness reports, production reports, and operating
manuals no doubt are quite valuable in compiling a com-
prehensive investigation, these are independent of, and sup-
plementary to, a site inspection.” Id. at 967. “The potential
for controlling the results by controlling the investigator
simply is so obvious that we need not dwell on the claim
Nos. 14-3528, 14-3729                                          11


that Respondent’s air sampling reports are a viable alterna-
tive to the Union’s independent inspection. It is elementary
that here, as with the accident investigation, a verifiable, fair,
accurate, and complete investigation necessitates the Union
having access to conduct its own air monitoring. The need
for such live study by the Union is compelling.” Id. at 968.
“The Union is not obligated to rely solely on reports and in-
formation obtained by others. It is entitled to its own inde-
pendent examination of the facilities and this entitlement is
unrelated to the Respondent’s contention that its own stud-
ies and examinations are performed with such accuracy and
expertise that no independent verification is required. Such
position amounts to an absolute, closed-door policy and
renders irrelevant the balancing test that is required to be
done. Moreover, it would appear that the circumstances cre-
ate a presumption not only of relevancy and need, but of ac-
cess as well.” Id. at 970.
    And finally: “Respondent’s final argument [is] that its
proprietary interest and the need to protect the secrecy of its
operation are paramount to the Union’s need for firsthand
information and justify exclusion of the Union. Whatever
appeal that contention arguably might have, fades in face of
the fact that Respondent does not maintain or implement an
absolute exclusionary policy in order to assure secrecy of its
operations, but indeed invites nonemployees on to its prem-
ises. … However, the condition for access that it readily af-
fords to other nonemployees and employees was not ten-
dered to the Union. It appears from that fact alone that Re-
spondent’s secrecy argument is disingenuous.” Id. at 970–71.
   Caterpillar counters with Lechmere, Inc. v. NLRB, 502 U.S.
527 (1992)—a manifestly inapt reference. The issue was the
12                                        Nos. 14-3528, 14-3729


right of access to company property of nonemployees who
wanted to organize a union of the company’s employees.
That obviously would have a distracting, perhaps disrup-
tive, effect on the company’s operations, and could not be
defended by reference to a collective bargaining representa-
tive’s obligation to bargain for work practices consistent
with preserving the health and safety of the bargaining
unit’s members, because there was as yet no bargaining unit.
It’s no surprise, therefore, that neither the Labor Board nor
any court has applied Lechmere to safety and health inspec-
tions on behalf of employees represented by a union that has
a collective bargaining agreement with their employer.
    What could be disruptive of Caterpillar’s operations at
the Milwaukee plant would be the union’s insisting on con-
tinuous inspections of the weld shop by members of the
emergency response team. But the Board made clear in its
opinion that the company need only permit reasonable in-
spections, properly spaced and timed and so forth.
   The company admits and indeed asserts that there must
be a balance between the union’s interest in protecting the
health and safety of the workers whom it represents and the
company’s interest in avoiding disruptive intrusions on its
operations. What it fails to recognize is that after a fatal acci-
dent the union has a compelling interest in site access and
therefore the company faces a high hurdle in trying to
demonstrate that its property interests outweigh the union’s
need.
   Here is a classic image of a balance: Two identical pans
are weighed against each other, and one sinks lower because
Nos. 14-3528, 14-3729                                       13




it contains heavier material. Caterpillar’s counsel admits that
the “pan” that holds the burden to the company of allowing
access to a member of the emergency response team is emp-
ty (because there is “no actual harm”), but we know that the
“pan” that holds the burden to the union and the workers of
being denied access is not empty. The balance thus unequiv-
ocally—as Caterpillar’s counsel in effect conceded—favors
the Labor Board’s ruling. He conceded himself out of court.
   Since it is apparent that the materials shown Thompson
were not an adequate substitute for an on-site investigation,
and it is admitted that the investigation would have im-
posed trivial costs on the company unless the investigation
revealed safety problems that were expensive to fix, the chal-
lenge to the Board’s order has no merit. We therefore enforce
the order and deny the company’s petition for review.
14                                        Nos. 14-3528, 14-3729

     MANION, Circuit Judge, concurring in the judgment.
    We must enforce the Board’s order and deny Caterpillar’s
petition for review because both the Board and the ALJ
properly balanced the parties’ rights under Holyoke Water
Power Co., 273 N.L.R.B. 1369 (1985). The ALJ found that the
union’s right to responsible representation on the issues of
health and safety required an onsite inspection and that the
materials Caterpillar provided to the union were a poor sub-
stitute. Thus, the ALJ found that the union’s right to access
outweighed Caterpillar’s property rights. Caterpillar Inc., 359
N.L.R.B. No. 97 (Apr. 23, 2013). The Board affirmed these find-
ings. 361 N.L.R.B. No. 77 (Oct. 30, 2014). The Board’s decision
was supported by substantial evidence and its legal conclu-
sions have a reasonable basis in law. See Sears, Roebuck & Co.
v. NLRB, 349 F.3d 493, 502 (7th Cir. 2003).
    The balance weighed is between the parties’ respective
rights, not the harms or burdens. Ante at 8; cf. ante at 12–13. To
determine whose right prevails, the Board balances the com-
pany’s property rights, which include the right to exclude oth-
ers, against the union’s right to responsible representation,
which requires information on health and safety conditions.
In so doing, the Board must consider whether the union’s
needs can be met by alternate means other than entering the
employer’s premises. Holyoke Water Power, 273 N.L.R.B. at
1370.
    The Supreme Court has recognized that “[o]rganization
rights are granted to workers by the same authority, the Na-
tional Government, that preserves property rights,” and that
employers have the “right to exclude from property.” N.L.R.B.
v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956). Caterpillar’s
lack of an “actual harm” from Thompson’s inspection does
Nos. 14-3528, 14-3729                                         15

not render its side of the scale empty. Caterpillar still retains
the right to exclude others from its property. The lack of harm,
however, shows in this case that Caterpillar’s property rights
can be sufficiently accommodated even if it is forced to allow
union access.
    That said, even union access that results in “no actual
harm” still infringes on an employer’s property rights, requir-
ing the Board to determine whether the union has an actual
need for access. This was the point of Caterpillar’s reference
to a leaky faucet. Caterpillar did not analogize the accident
investigation sought by the union to an investigation of a
leaky faucet to trivialize the unfortunate man’s death. See ante
at 2. Rather, Caterpillar stressed that access must be granted
only where alternative means are insufficient:
       The severity—indeed, the tragedy—of the acci-
       dent is not in dispute. But, the touchstone of the
       Holyoke standard is not the relative severity of
       the accident that precipitated the Union’s de-
       mand for access, it is the necessity of access as
       the only means of carrying out the union’s rep-
       resentational function. Again, that the Union
       may seek access for a legitimate representa-
       tional purpose is only the threshold question in
       the analysis. Holyoke, 273 NLRB at 1370. The crit-
       ical inquiry is whether access is required in or-
       der for the union to undertake its investigation.
       Id. If not, the employer’s competing property in-
       terests prevail, whether the underlying issue
       that the union seeks to investigate [is] an indus-
       trial accident or a leaky faucet.
16                                              Nos. 14-3528, 14-3729

Appellant Br. 31. While “a leaky faucet” is perhaps not the
best comparison, the Board used the same comparison during
oral argument to explain why the relevance of the information
sought from an investigation must be established before Ho-
lyoke’s balancing test is applied. The Board did so to explain
why the ALJ discussed information cases when the union
sought access.
    The ALJ found, by substantial evidence, that the alterna-
tive means to investigate were insufficient, so the union re-
quired access. It is the union’s need for access, rooted in the
employees’ right to responsible representation, that weighs
heavier on the scale than Caterpillar’s property rights. What-
ever benefit the union derives from demonstrating to its mem-
bers that it is not impotent is not weighed in the balance. 1 See
ante at 8. The right to responsible representation does not in-
clude the right to flex union muscle.




     1Although we cannot exclude the possibility that Caterpillar refused
access to Thompson to prevent the union from “perhaps discovering neg-
ligence” or “to demonstrate to its employees that the union can do nothing
to enhance their safety,” ante at 8, there is no evidence in the record to
suggest that it was so.
