OSHA Changes Course: Will Allow Outside Representatives, Including Union Agents, to Enter Non-Union Worksites During OSHA Inspections

by Littler
Contact

In a letter of interpretation dated February 21, 2013 (but only publicly released on April 5), the federal Occupational Safety and Health Administration (OSHA) states that, during inspections of non-union workplaces, employees can be represented by anyone selected by the employees, including outside union agents. 

The new interpretation from Richard Fairfax, Deputy Assistant Secretary of OSHA, to Steve Sallman, Health and Safety Specialist with the United Steelworkers Union, asserts that OSHA's standard for Representatives of Employers and Employees allows workers at establishments without collective bargaining agreements to designate outside representatives or union agents to represent them during OSHA inspections.  This ruling contradicts the plain language of OSHA's governing regulation, 29 C.F.R. § 1903.8(c), as well as longstanding agency guidance and past interpretations.

OSHA's action in allowing unions and other organizations to participate in its inspections, even where they do not formally represent a majority of employees, threatens to disrupt OSHA's primary mission by embroiling the agency in representation organization and community disputes.  Moreover, it represents an unwarranted change in existing law that has not undergone appropriate notice and comment rulemaking. 

Neither the Act nor OSHA's Regulations Support the Interpretation

Section 8 of the Occupational Safety and Health (OSH) Act provides:

Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.1

Consistent with this authority, OSHA promulgated a regulation as follows:

The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.2

Following its enactment, this regulation was consistently interpreted by OSHA to provide for accompaniment by a labor union only where such a union was certified or recognized as representing the employees under procedures established by the National Labor Relations Board.3  Indeed, OSHA's old Field Inspection Reference Manual (FIRM) titled the section on inspection accompaniment "Employees represented by a certified or authorized bargaining agent."4 OSHA's replacement Field Operations Manual (FOM) includes an identical provision.5  The following section of the FOM addresses what an OSHA inspector should do where there is "No Certified or Recognized Bargaining Agent":

Where employees are not represented by an authorized representative, there is no established safety committee, or employees have not chosen or agreed to an employee representative for OSHA inspection purposes (regardless of the existence of a safety committee), CSHOs shall determine if other employees would suitably represent the interests of employees on the walkaround. If selection of such an employee is impractical, CSHOs shall conduct interviews with a reasonable number of employees during the walkaround.6

At no point in either manual, or any other guidance, has OSHA ever approved a non-employee union representative for a minority of employees as a participant or observer in an on-site inspection of an employer. 

Consistent with its past actions, when OSHA amended its Injury and Illness Recordkeeping Rules in 2002, the agency specifically provided for participation by an "authorized representative."  Defining that term, OSHA stated:

Who is an authorized employee representative? An authorized employee representative is an authorized collective bargaining agent of employees.7

Comparison to the Mine Safety and Health Administration

Peg Seminario, the AFL-CIO's Safety and Health Director, stated that the interpretation simply confirmed existing OSHA policy and brought OSHA into line with the policies of the Mine Safety and Health Administration (MSHA).  In fact, the MSHA and OSHA standards on this issue have until now been quite different, reflecting differences between mining and other industries.  Thus, MSHA's regulation contrasts sharply with the OSHA regulation cited above:

Representative of miners means: (1) Any person or organization which represents two or more miners at a coal or other mine for the purposes of the Act, and (2) Representatives authorized by the miners, miners or their representative, authorized miner representative, and other similar terms as they appear in the Act.8

Unlike OSHA, MSHA did not require a representative to be an employee and expressly provided for minority groups of employees to select a representative.  Following the Sago mine accident, MSHA's effort to include the United Mine Workers as the representative of two unidentified miners was affirmed by the U.S. Court of Appeals for the Fourth Circuit based upon this clear and unequivocal regulation.9

Withdrawal of Prior Interpretation Letter Excluding Non-Representative Union

In the new interpretation, OSHA suggested a prior letter of interpretation to a union official with the International Brotherhood of Boilermakers (IBB) might have caused confusion.  In that letter the IBB asked whether, at a facility where it did not have a labor agreement, it could act as a walkaround representative during an inspection based upon a complaint filed by the union.  OSHA opined that "neither the OSH Act, the regulations in 29 CFR §1903.8, nor the FIRM make any provision for a walkaround representative who has filed a complaint on behalf of an employee of the workplace."

Withdrawing that interpretation, OSHA stated that the letter stood only for the proposition that the filing of a complaint by a union did not convey inspection walkaround rights.  This narrow reading ignored the overall context of the letter and the express acknowledgement that the union was filing the complaint on behalf of the employee – and thus undoubtedly would be the employee's choice as a representative for any subsequent inspection. 

Conclusion and Recommendations

OSHA's new interpretation of its existing regulation – allowing non-representative union access to non-union worksites during inspections – fundamentally departs from the regulatory standard without legal authority.  While creating a near absolute right of an NLRB certified union to participate in its inspections, the agency has attempted to set itself up as the sole arbiter of other organizations that may participate where there is no recognized union. 

In a politically charged organizing environment, non-union employers should ensure that their positive employee relations programs do not neglect safety and health.  Establishment of a health and safety committee that includes an expressly defined representative role for participating in an OSHA inspection may not only eliminate interest in a union safety claim, but may also prevent a non-representative union from participating in an OSHA inspection. 

When faced with the prospect of OSHA inviting a third party along for an inspection, non-union employers should carefully consider whether to allow OSHA to proceed with the third parties or allow only OSHA to proceed and refuse entry to the third parties.  Where the third parties are refused entry, OSHA's only recourse is to consider that action a refusal to allow OSHA to enter, and request that the Department of Labor Solicitor's Office initiate an action for an inspection warrant. OSHA would then have to convince a court that the agency has a right to bring the third party representative or union agent onsite during the inspection.  Although inspection warrants may be obtained on an ex parte basis, where the company has identified that it is represented by legal counsel and stated a legal objection to the inspection conduct, the company may participate in the warrant process or subsequently move to quash the warrant.  There are no citations or penalties associated with the exercise of an employer's rights under the Fourth Amendment, and OSHA is prohibited from retaliating based on the exercise of those rights. 

Employers may also be entitled to insist that any outside agent entering a worksite comply with all safety and health obligations and jobsite protections.  Any required training, personal protective equipment, and health examinations must be complied with before any outsider should be permitted to enter a worksite for inspection activity.  Any protection for confidential information or trade secrets must also be addressed before the inspection.  In addition, employers should consider either appropriate insurance coverage or liability waivers before the third parties enter the worksite. 

Finally, the new OSHA interpretation may be subject to a broader legal challenge because OSHA failed to conduct notice and comment rulemaking before apparently changing the applicable inspection standard.


129 U.S.C. § 657(e).

229 C.F.R. § 1903.8(c). 

3The Occupational Safety and Health Review Commission, the independent agency which adjudicates OSHA Citations, has defined "Authorized employee representative" to mean "a labor organization that has a collective bargaining relationship with the cited employer and that represents affected employees." 29 C.F.R. § 2200.1(g).  The Review Commission recognizes that "[a]ffected employees not in collective bargaining unit" may elect party status.  29 C.F.R. § 2200.22(c) (emphasis added).  The Review Commission does not recognize any party status for unions that have not been recognized through the NLRB process for exclusive representation. 

4 FIRM § A.3.f.(a) (CPL 2.103).

5 FOM Chapter 3, VII.A.1. 

6 FOM Chapter 3, VII.A.2 (emphasis added).

7 29 C.F.R. § 1904.35(b)(2)(i).

8 30 C.F.R. § 40.1(b). 

9 U.S. Dep't of Labor vWolf Run Mining Co., 452 F.3d 275 (4th Cir. 2006).

Ben Huggett, a Shareholder in Littler Mendelson's Philadelphia office, exclusively practices management side labor law and OSHA defense.  He is thoroughly familiar with these issues having been part of the legal team that successfully excluded the United Steelworkers Union from an OSHA inspection of working conditions for strike replacement workers.  If you would like further information, please contact your Littler attorney at 1.888.Littler or info@littler.com, or Mr. Huggett at tbhuggett@littler.com.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Littler | Attorney Advertising

Written by:

Littler
Contact
more
less

Littler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.