As we discussed in a previous post, the Occupational Safety and Health Administration (OSHA) issued an interpretation letter last year stating that non-employee union organizers or community activists could “represent” employees at non-union workplaces during OSHA inspections. OSHA’s interpretation letter caused quite a stir in the employer community, and it has been reported that, OSHA is trying to include non-employee union organizers in some inspections. This post provides practical advice to employers on steps they can take should OSHA arrive with a union representative for an inspection of a nonunion worksite.
Section 8 of the Occupational Safety and Health Act of 1970 (OSH Act) permits an authorized employee representative to accompany an OSHA compliance officer during an inspection of a worksite. Section 1903.8(c) of the OSHA regulations governing inspections states that “the authorized employee representative shall be an employee(s) of the employer” (emphasis added). If, however, the compliance officer determines that “good cause” has been shown, “a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer)” who is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace” may accompany the compliance officer. Based on this provision, OSHA has—on rare occasions—brought in outside safety experts to assist in conducting inspections involving complex industrial hygiene or engineering issues.
On February 21, 2013, OSHA issued an interpretation letter that drastically expanded the employee representative provision beyond the language in section 1903.8(c) to allow nonemployee union organizers and community activists to “represent” employees during OSHA inspections. The letter was issued in response to an inquiry from a health and safety specialist with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union and permitted employee “representatives” to,
accompany the compliance officer during the walkaround inspection;
participate in interviews of non-management employees; and
participate in informal settlement conferences held after citations are issued.
Allowing union organizers to participate in these types of activities gives unions unprecedented access to employees, which is a critical factor during an active organizing campaign. The letter did not provide any information regarding how OSHA would evaluate whether employees themselves had actually selected the union organizer or community activist to “represent” them. OSHA policy makers have indicated informally that the compliance officer would typically present the employer with a document signed by one or more employees requesting “representation”—a process that does not square with the requirements of the National Labor Relations Act.
While the compliance officer must determine that the employee representative is “reasonably necessary,” OSHA set a low bar for making this determination. OSHA explains that union organizers or community activities are “reasonably necessary” when they can make a “positive contribution to a thorough and effective inspection,” by having, among other things, experience evaluating similar working conditions at other worksites, the ability to translate for non-English speaking employees, or by assisting employees who “feel uncomfortable” speaking with the compliance officer alone.
Despite employer and Congressional opposition, OSHA has shown no signs of withdrawing or amending the letter. Instead, OSHA insists that the letter simply clarifies its existing policy regarding employees’ rights to choose a representative—a position that is clearly in conflict with the language in the agency’s own regulation. Some employers report that OSHA is pressing to include union organizers in inspections.
Typically, the employer would permit OSHA to perform an inspection, but refuse to allow the non-employee union organizer or community activist to participate. It is cognizable that in response to such an act, OSHA might obtain a warrant allowing the third party to participate. The employer would likely then move to quash the warrant in federal district court.
Below are some tips for employers in the event a union organizer or community activist seeks to participate in an OSHA inspection.
Step 1: When OSHA shows up with a union organizer or community activist, state that you will cooperate with OSHA, but need to understand why the third party needs to be involved. Questions to ask include:
With what organization is the third party affiliated?
Does OSHA claim that the person has relevant safety or health expertise? What is it?
How did employees select the third party to represent them during the walkaround?
How does OSHA know that the employees actually chose this person to represent them?
Is the person here for language reasons? Can a bilingual employee translate instead?
Has OSHA determined that employees would not feel comfortable talking to OSHA alone? How? (Can’t each employee choose a coworker to sit with him or her during the interview?)
These points also suggest several preparatory steps employers should take before OSHA shows up to inspect. First—Does the employer have a safety committee? If so, has that safety committee discussed who the employee representatives should be during an OSHA inspection? Having an employee representative selected by the safety committee may blunt any argument OSHA has that employees have chosen a third-party “representative.” Second—If there is a language issue, how is it dealt with in non-OSHA situations? Being able to offer a non-management employee to translate may negate the need to involve a third party.
Step 2: Facility management should be instructed to notify corporate officers as soon as possible should OSHA appear for an inspection. If OSHA ultimately elects to obtain a warrant, the Office of the Solicitor of Labor (OSHA’s legal counsel) will have to be consulted. Negotiations between in-house or outside counsel and the Solicitor’s Office may resolve the issue if those conversations occur early in the process.
Step 3: If OSHA continues to insist on having the third-party representative participate, the employer may allow OSHA to inspect but refuse access to the third party. It is important to make clear that the company is willing to let OSHA conduct the inspection as long as the third party does not participate.
Step 4: If OSHA ultimately obtains a warrant, the employer may file a motion to quash the warrant in the relevant district court. Some employers have already developed draft pleadings to use in district court that may be particularly beneficial in the midst of active union organizing campaigns.