Union Representatives May Participate in Walkaround Insepections in Nonunion Companies

ConstrucPlans.gifIn a new letter of interpretation publically released on April 5, 2013, the Occupational Safety and Health Administration (OSHA) announced for the first time that during an OSHA inspection of nonunion worksites, employees can be represented by anyone selected by the employees including outside union agents.

Background

Until now, OSHA’s policy has been to allow union representatives to be the “employee representative” but only when the inspection involves a unionized workplace. Section 8(e) of the Occupational Safety and Health Act of 1970 specifically stated the following regarding worksite inspections and third-party representatives:

[A] representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the ... [OSHA] representative during the physical inspection of the workplace … for the purpose of aiding the inspection. Where there is no authorized employee representative, the... [OSHA] representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

In other words, historically under the Act, the union had to be a recognized representative—in other words, a union “certified” by the National Labor Relations Board to act as the employee representative in an OSHA inspection.

OSHA’s New Union-Supported Policy

4ConstMen2.gifAccording to OSHA’s new interpretation, nonunion employees can select a person who is affiliated with a union or a community organization to act as their “personal representative” in filing complaints on the employees’ behalf, requesting workplace inspections, participating in informal conferences to discuss citations, and challenging the abatement period in citations being contested by an employer. The interpretation letter goes on to state that “a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walkaround representative.”

OSHA is utilizing a novel analysis in justifying its new determination that the Act and OSHA inspection regulations explicitly allow walkaround participation by an employee representative who is not an employee of the employer when, in the judgment of the OSHA compliance officer, such representation is “reasonably necessary to the conduct of an effective and thorough physical inspection.”

Under this expansive interpretation (which fails to specifically define who is “a person” affiliated with a union or community representative), not only can union organizers be designated as the “employee representative” but also individuals such as community activists or perhaps even plaintiff lawyers could participate in an OSHA inspection on behalf of some of the employees.

There is concern that OSHA’s new policy may encourage unions to get involved in OSHA inspections and complaints in nonorganized facilities as a means of gaining access to the facility where they normally would not have access.

OSHA’s new interpretation actually goes directly against its own inspection regulation. Section 1903.8 of the OSHA inspection regulations states in part that:

(b) If there is no authorized representative of employees, or if the Compliance Safety and Health Officer (CSHO) is unable to determine with reasonable certainty who is such representative, he shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.

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