Under the National Labor Relations Act (NLRA), absent a few highly unusual situations, a non-employee union representative can be denied access to an employer’s property at any time. Workplace inspections conducted by OSHA have always allowed for employees to participate in onsite inspections. OSHA regulations also permit employees to designate a third party (who is not an employee) to participate.
The new OSHA interpretation letter makes it clear that union officials can “override” the NLRA general “employer denial of access right” referenced above during an OSHA inspection. Such presence during the inspection, at worst, gives employees the impression that the union possesses some kind of authority or control over the employer, and, at best, introduces the idea of a union into a workplace the employer has worked very hard to keep union-free.
How to Respond to This Development
There are some proactive steps non-union employers can take to try to foreclose a union’s ability to access their workplace and potentially their employees in this manner.
Ask employees to choose their own “safety representative” well in advance of any OSHA inspection. For instance, if your company already has a lawful safety committee, employees could be asked to choose a member of that committee as their designated “safety representative” -- or at least to commit that “a member of this committee” will be so designated – “in the event of an internal or external safety inspection.” This will allow you to point out to the OSHA Compliance Safety and Health Officer (“CSHO”) who is conducting a later OSHA inspection that there is “already a representative chosen by the employees who is ready, willing, and able to attend the walk-around inspection with the CSHO.” By so doing, you may be able to prevent a third-party union representative from participating in the inspection at the invitation of a few pro-union employees.
The final decision on who will participate in a walk-around OSHA inspection rests with the CSHO who is conducting the inspection. The CSHO has discretion in assembling the walk-around inspection group. Taking the above “ask employees to choose a safety representative in advance” proactive step thus is not a fool-proof way to exclude union representatives from an OSHA inspection.
Regardless of whether you decide to take the above proactive step, you should at least be prepared to address the issue of “who will participate” in the inspection in the opening conference, which takes place after the CSHO arrives on site for an inspection but before the actual walk-around begins. This could circumvent a “surprise visit” by a union representative shortly after the inspection has started.
You also can object to participation by an outside third party unless that third party possesses some sort of relevant expertise such as safety engineering or industrial hygiene.
If the CSHO is insistent that a third-party union official should be allowed to participate, you should carefully consider contacting legal counsel immediately to discuss whether OSHA’s visit should be suspended as of the opening conference and whether a search warrant should be required in order for the inspection to proceed.
In almost every case where such a challenge is made, the CSHO will seek a search warrant, but by requiring a warrant, you can, at least, (i) transfer the decision to a judicial level, (ii) have the opportunity for a hearing, (iii) remove the decision on who should participate in the inspection from the CSHO’s sole discretion, and, (iv) if the decision is made to allow an outside third-party representative, establish limits on what he/she will be allowed to do during the inspection.
Typically, it is not advisable to insist on a search warrant – as such a request obviously does not get an OSHA inspection started on the best foot with the CSHO. However, if union representatives begin using this open door to show up for onsite inspections, employers will at least need to consider making such requests. In light of most employers’ anti-union vigilance, OSHA’s new interpretation with respect to union representatives being allowed to participate in the onsite inspection process may be a game changer, which may result in a substantial increase in employers who insist that OSHA obtain a search warrant prior to conducting a walk-around inspection in hopes that court intervention in this process will give them the chance to close this door by invoking their traditional right to control the workplace.
For further guidance or training on what to expect during an OSHA inspection, please contact Mike Mallen
. For further union avoidance guidance or training, please contact Bill Trumpeter
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance. Should you need assistance from a Miller & Martin attorney, please call 1-800-275-7303.