In an interpretation letter released on April 5, 2013, OSHA stated that employees in a non-union facility may select a non-employee who is affiliated with a union to act as their representative during OSHA’s walk-around inspection of the employer’s worksite. OSHA issued the letter in response to a question from a health and safety specialist of the United Steelworkers Union.
By way of background, OSHA regulations provide that employees may designate a representative to accompany the OSHA compliance officer during the physical inspection of any workplace. The regulations recognize that in most cases the representative will be an employee of the employer. However, the compliance officer also has authority to permit a non-employee third party to be present during the inspection whenever it is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.”
The new OSHA interpretation letter specifically recognizes that non-union employees may select a union representative to accompany the compliance officer during the inspection. OSHA reasoned that union representatives could make an important contribution to the inspection through their experience evaluating similar working conditions in different plants. OSHA also noted that workers in some situations may feel uncomfortable talking to a compliance officer without “the trusted presence of a representative of their choosing.” OSHA even went so far as to rescind an older interpretation letter that may have conflicted with its new position on this issue.
Clearly, non-union employers should be concerned about this policy, which may encourage union representatives to use OSHA as an organizing tool. The policy creates an opportunity for union representatives to make contact with non-union employees at their workplace and promote the benefits of organizing and collective bargaining. So, what can non-union employers do to keep employees from selecting a union representative to speak for them during an OSHA inspection? The safest course is to encourage employees to become actively involved in workplace safety issues. For example, employers can create a safety committee and invite employees to join the committee. Employees who are already involved in safety issues will be less likely to reach out to a union representative when an OSHA inspection occurs.
A legal battle is anticipated regarding OSHA’s new policy. In the meantime, Roetzel will keep you updated on new developments in this important issue.