In a January 23, 2015 letter to the U.S. Occupational Safety and Health Review Commission (“Review Commission” or “OSHRC”), the agency that adjudicates contested OSHA citations, several unions, including the National Council for Occupational Safety and Health (National COSH), North America’s Building Trades Unions (Building Trades), Change to Win and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (Steelworkers) petitioned the Review Commission to amend its procedural regulations. These four entities petitioned the Review Commission to amend various procedural regulations, including amending the definition of “affected employee,” clarify that employees may select any person as their representative and narrow the scope of confidential information during settlement proceedings. According to the petition, “[e]ach of the suggested changes would enhance opportunities for employee participating in OSHRC proceedings.”
Employees currently have several abilities to participate in Review Commission proceedings. Under current procedural regulations, both authorized employee representatives, employees of the cited employer represented by a labor organization, and affected employees, employees of the cited employer may elect party status. 29 C.F.R. § 2200.20. So current regulations allow both union represented employees and non-union employees of the cited employer to participate in proceedings. Further, similar to federal and state courts, non-parties, such as unions without a collective bargaining agreement with the cited employer, may petition the Review Commission for leave to “intervene” or otherwise participate in the proceedings without permission from the parties to the case. 29 C.F.R. § 2200.21.
In its petition, the unions allege that “employees do not exercise the rights they have been given under the OSH Act….One reason employees often do not exercise their right to participate in OSHRC proceedings is that the Commission’s procedural rules, at least the way they have been applied, create unreasonable obstacles to full employee participation.”
In an effort to address these “obstacles” the petition requests the Review Commission to redefine the definition of “affected employee.” Rather than limit the affected employee to the cited employer, the petition suggests that an ““affected employee” should be any employee who performs work at the site.” Therefore, any employee at a multi-employer worksite could choose to participate in the proceedings even if the citations do not pertain to his/her employer.
Further, the petition requests that the Review Commission clarify that employees may select any person as their representative. It is unclear from the petition what needs to be clarified given that the current regulations allow parties to proceedings to be represented by an attorney “or through another representative who is not an attorney.” 29 C.F.R. § 2200.22.
Lastly, the petition urges the Review Commission to “narrow the scope of confidentiality during settlement proceedings.” The petition suggests that the confidentiality of information presented during settlement proceedings is too broad and essentially prohibits employees who are a party to a proceeding from “communicating with the public in their efforts to improve their working conditions.” Under current procedural regulations, “all statements made and information presented during the course of settlement proceedings…shall be regarded as confidential and shall not be divulged outside of these proceedings.” 29 C.F.R. § 2200.120(d)(3). Confidentiality of settlement proceedings encourages all parties to engage in open and free discussions about the merits of the case as well as abatement for the alleged citations.
There has been no indicated from the Review Commission how, if at all, the Agency will respond to the petition.