How to Be Prepared if a Non-Employee Union Agent Shows Up with OSHA at an Inspection

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

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,

  1. accompany the compliance officer during the walkaround inspection;
  2. participate in interviews of non-management employees; and
  3. 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.

 

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.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 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.
Custom Email Digest
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.