Today's News / Compliance

Union officials can now accompany OSHA inspectors at non-union worksites

Change angers some employers

May 13, 2013
/ Print / Reprints /
ShareMore
/ Text Size+

OSHAUnion officials or community organizers will be allowed on “walkaround” OSHA inspections at non-union workplaces, under a new interpretation of regulations by the agency in a recent interpretation letter.

The revision comes in response to a letter from Steve Sallman, Health and Safety Specialist for the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.

“You ask whether workers at a workplace without a collective bargaining agreement may authorize a person who is affiliated with a union or a community organization to act as their representative under the Occupational Safety and Health Act (OSH Act),” writes Deputy Assistant Director Richard Fairfax in a letter of interpretation released on April 5, 2013.* “This would include "representing the employee(s) as a personal representative" and "accompanying the employee on an OSHA inspection" in a non-unionized workplace.”

Fairfax’s answer: yes.

“The OSH Act, the Secretary's regulations implementing it, and OSHA's Field Operations Manual (FOM) all recognize the role of an "employee representative," who may represent employees' interests in enforcement-related matters. For example, a representative may: (1) file complaints on behalf of an employee (29 U.S.C. § 657(f), 29 C.F.R. § 1903.11(a)); (2) request workplace inspections (29 U.S.C. § 657(f), 29 C.F.R. § 1952.10(a)); and (3) participate in informal conferences to discuss issues raised by citations (29 C.F.R. § 1903.20). An employee representative may also contest the abatement period in OSHA citations and participate in contest proceedings filed by an employer (29 U.S.C. § 659(c)). The Field Operations Manual explains that an employee representative may include any person acting in a bona fide representative capacity, including nonprofit groups or organizations (FOM Chapter 9, I.A)."

Fairfax adds: "The OSH Act authorizes participation in the walkaround portion of an OSHA inspection by "a representative authorized by [the employer's] employees." 29 U.S.C. § 657(e). Therefore, 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 so long as the individual has been authorized by the employees to serve as their representative. This right, however, is qualified by the Secretary's regulations, which allow OSHA compliance officers (CSHOs) to exercise discretion over who participates in workplace inspections.

"Section 8(e) of the OSH Act provides that, "[s]ubject to the Secretary's regulations, 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 . . . for the purpose of aiding such inspection." 29 U.S.C. § 657(e). This language makes plain that, subject to the Secretary's regulations, where employees have chosen a representative, they have a right to have that representative accompany the CSHO during a workplace inspection. The Secretary's regulations, 29 C.F.R. § 1903.8, qualify the walkaround right somewhat, but only in order to allow OSHA to manage its inspections effectively. They allow the Secretary or her authorized representative (the compliance officer) conducting the inspection to determine who can participate in an inspection. See 29 C.F.R. §§ 1903.8(a)-(d)."

In the letter, he noted that there are numerous ways that an employee representative who is neither an employee of the employer being inspected nor a collective bargaining agent could contribute to inspection through that person's experience with ealuating similar working conditions in a different plant, or a fluency in a language (other than English) spoken by workers at the site. "Finally, workers in some situations may feel uncomfortable talking to an OSHA CSHO without the trusted presence of a representative of their choosing."

Previously, OSHA allowed union representatives to be the employee representative only when the inspection involved a “union” workplace.

Labor law experts David Phippen and William K. Principe of Constangy Brooks & Smith LLP say the interpretation has generated some opposition from employers, who regard it as an attempt by the Obama administration to ease workplace access for labor unions, giving the unions more opportunities to get audiences inside non-union workplaces in order to organize them.

“This new interpretation arguably conflicts with an interpretation given by OSHA in 2003 and potentially contravenes the applicable provisions of the statute and regulation,” write Phippen and Principe. “Litigation may eventually decide the validity of the new interpretation.”

*Fairfax retired earlier this month.

Did you enjoy this article? Click here to subscribe to ISHN.

You must login or register in order to post a comment.

STAY CONNECTED

Facebook logo Twitter YouTubeLinkedIn Google + icon

Multimedia

Videos

Image Galleries

ASSE Safety 2014 Review

A gallery of photos from the sprawling Orange County Convention Center in Orlando, where ASSE’s annual professional development conference was held June 8-11. All photos courtesy of the American Society of Safety Engineers.

9/30/14 2:00 pm EST

Leveraging Sustainability Initiatives to Benefit Your Community and Increase Compliance

This webinar will review how General Motors' Sustainability initiatives are being leveraged to improve the community and the environment, create efficient energy programs, improve sustainability tracking, impact on processes and overall reporting and improve overall social, environmental and corporate sustainability.

ISHN Magazine

ISHN SEPTEMBER 2014 COVER

2014 September

ISHN'S September issue features a series of essay on thought leadership. Get expert advice on self-motivation, compliance and more!

Table Of Contents Subscribe

THE ISHN STORE

M:\General Shared\__AEC Store Katie Z\AEC Store\Images\ISHN\safetyfourth.jpg
Safety Engineering, 4th Edition

A practical, solutions-driven reference, Safety Engineering, 4th edition, has been completely revised and updated to reflect many of today’s issues in safety.

More Products

For Distributors Only - SEPTEMBER 2014

ISHN FDO SEPTEMBER 2014For Distributors Only is ISHN's niche brand standard-sized magazine supplement aimed at an audience of 2,000 U.S. distributors that sell safety products. Circulation only goes to distributors. CHECK OUT THE SEPTEMBER 2014 ISSUE OF FDO HERE

ishn infographics

2012 US workplace deathsCheck out ISHN's new Infographic page! Learn more about worker safety through these interactive images. CLICK HERE to view the page.