On April 5, 2013, the federal Occupational Safety and Health Administration (“OSHA”) released an interpretation letter stating that during its inspections of nonunion workplaces, employees can be represented by anyone authorized by the site’s workers.
The letter from Richard Fairfax, Deputy Assistant Secretary of OSHA, mentions that OSHA standard 29 C.F.R. §1903.8(c), Representatives of Employers and Employees, allows workers at establishments without collective bargaining agreements to designate who will act on their behalf during inspections. The representative does not have to be an employee, according to Fairfax.
The actual OSHA standard or regulation, 29 C.F.R. §1903.8(c), states in the first sentence: “The representative(s) authorized by employees shall be an employee(s) of the employer.” The standard then contains a second and longer sentence: “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.”
Even though the above standard makes no reference to union representatives, OSHA has gone beyond the literal language of the standard to assert that Section 1903.8(c) allows walkaround participation by an employee representative who is not an employee of the employer based on the judgment of the OSHA compliance officer. OSHA also takes the view that representatives are “reasonably necessary” when they will make a positive contribution to a thorough and effective inspection.
While union safety officials have viewed Fairfax’s letter as reinforcing existing OSHA policies, employers have regarded the letter as opening the door for OSHA to become a tool for union representatives and forcing OSHA to take side in disagreements among employees. Peg Seminario, the AFL-CIO’s Safety and Health Director, has stated that the Fairfax letter confirmed what has been OSHA’s policy for several years and brings OSHA into line with Mine Safety and Health Administration and other Department of Labor agency inspection rules. However, one management representative has expressed concern that Fairfax’s letter moves OSHA into supporting union-organizing efforts.
Prior Interpretation Letter Withdrawn
Fairfax mentioned in his letter that there has been confusion arising from a March 7, 2003 OSHA letter to another union safety official. The prior letter stated that a non-employee who files a complaint does not necessarily have a right to participate in an inspection resulting from the complaint.
Fairfax reasoned that the prior letter did not address the right of workers at a facility without a collective bargaining agreement to have a representative of their own choosing participate in an inspection. Fairfax concluded that to the extent the prior letter has been interpreted to prohibit the right of a third party to participate in an inspection, it is inconsistent with the Occupational Safety and Health Act and with OSHA’s regulations. As a result of this confusion, OSHA stated in Fairfax’s letter that it is withdrawing the prior letter.
While OSHA can assert that its recent interpretation letter does not change the law, the letter clearly signals to unions that the current administration will permit them to use the walk around portion of an OSHA inspection as an organizing tool, despite the literal language in 29 C.F.R. §1903.8. Nonunion employers may want to encourage their own employees to become involved in safety issues so that union representatives are less likely to be involved in OSHA inspections at their workplaces.