Non-Union Employees at Worksite Safety Inspections Contradicts OSHA Regulation and Creates Host of Issues for Employers

With private sector union density steadily declining, unions will take help anywhere they can get it. The most recent case in point: the Occupational Safety and Health Administration (OSHA) issued an interpretation letter on February 21, 2013, stating that non-union employees can select anyone—including outside, non-employee union representatives—to accompany OSHA compliance officers during safety and health inspections of an employer’s work site.

The interpretation letter was issued in response to a request from Steve Sallman, a health and safety specialist with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. Sallman asked whether, under OSHA rules, workers at a non-unionized workplace could authorize an individual affiliated with a union to act as their representative. This involvement would include, he wrote, “representing the employee(s) as a personal representative” and “accompanying the employee on an OSHA inspection” in a non-unionized workplace.

Deputy Assistant Secretary of Labor for OSHA Richard Fairfax, who is retiring from the agency soon, replied that union representatives are welcome, even at union-free work sites where they have no official standing or representative role. OSHA allows workers at establishments without collective bargaining agreements to designate who will act on their behalf during inspections.

According to OSHA’s interpretation, non-union 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.”

In support of its position, OSHA points to the federal Occupational Safety and Health Act of 1970 (OSH Act), the Secretary’s regulations implementing the OSH Act, and OSHA’s Field Operations Manual. According to OSHA, all three sources “recognize the role of an ‘employee representative’ who may represent employees’ interests in enforcement-related matters.”

The position taken in the letter is a clear departure from OSHA’s longstanding practice. In an informal poll of experienced workplace safety and traditional labor attorneys at Ogletree Deakins, all confirmed that they had never encountered a situation where OSHA had insisted, requested, or permitted a non-employee union representative to participate in an inspection, informal conference, or any other aspect of an OSHA matter.

More importantly, this interpretation is directly contrary to OSHA’s own regulation at 29 C.F.R. §1903.8(c), which states that “the representative(s) authorized by employees shall be an employee(s) of the employer.” (Emphasis added.) The regulation goes on to state that a third party who is not an employee (such as an industrial hygienist or a safety engineer) may be allowed where the OSHA compliance officer determines there is good cause. OSHA’s current interpretation conveniently omits the examples of an industrial hygienist or safety engineer provided in the regulation and also fails to explain when there would ever be “good cause” to allow a non-employee union representative to represent employees during an OSHA inspection.  Arguably, the regulation limits such third-party representation to those with expertise in safety and health matters and is not as broad as OSHA’s interpretation suggests. Even if the non-employee union official is a safety and health specialist, there is no legal or policy basis for OSHA to intercede on behalf of a union in an organizing campaign by allowing union representatives the authority—and apparent power—to assist an OSHA compliance officer during an inspection.

Further, this broad definition of “employee representative” in no way harmonizes with other definitions of “employee representative” contained in OSHA’s own regulations. For example, OSHA’s regulations regarding cooperative agreements between federal OSHA and states for the use of state personnel in providing consulting services includes a definition of “employee representative.” Specifically, 29 C.F.R. §1908.2 defines “employee representative” as “the authorized representative of employees at a site where there is a recognized labor organization representing employees.”

As a practical matter, in the midst of an inspection, will employers challenge an OSHA compliance officer’s assessment and subjective judgment that the union’s presence is “reasonably necessary to the conduct of an effective and thorough physical inspection”? Is it incumbent upon the employer to withdraw consent to the inspection and demand a warrant? This is a move few employers will want to undertake for fear of the negative consequences in the outcome of the inspection, not to mention the potential for a disruptive “sideshow” during the inspection. Indeed, if an employer resists the participation of a non-employee union representative in an inspection, where or how an employer seeks recourse is unclear. If an employer challenges the union representative’s authority, but is unsuccessful, what message does that convey to employees about the union’s “powers”?

Additionally, OSHA’s interpretation raises several other issues not addressed by the agency. How is the appropriate employee representative determined and who makes this determination? Is it by a majority vote of the employees? What if some employees object to the selected representative? Do those employees get to select their own representative? Can there be multiple employee representatives? What protections does an employer have regarding the release of trade secrets or any other similar confidential matters to such an employee representative? What types of agreements can the employer require of the representative to ensure confidentiality? May a non-employee walkaround representative take photos or videos, or participate in sampling for employee exposure to toxic substances? Is an employer required to provide an outside or non-employee union representative with documents, such as OSHA 300 logs and 301 forms pursuant to §1904.35, which requires limited access to an employer’s injury and illness records for employees and their representatives?

Beyond the practical issues this interpretation raises but fails to answer, OSHA’s policy may encourage unions to use OSHA complaints and inspections as organizing tools to gain access to an employer’s facility from which the outside union organizer ordinarily would be excluded. As important, the OSHA inspection would allow the union organizer to have personal contact with employees, which is often invaluable during organizing campaigns. As stated earlier, the presence of a union organizer accompanying an OSHA compliance officer could also convey a message to non-union employees that the union has real power beyond the control of the employer and that is therefore beneficial to their interests.

Based on the language in §1903.8, the general expectation should continue to be that the employee representative will be an employee of the employer. OSHA should continue its longstanding policy of avoiding intervention in labor relations disputes. Indeed, it should be a rare case that a third party—whether a safety engineer, industrial hygienist, or a non-employee union representative—is allowed to act as an employee representative.