Under the Occupational Safety and Health Act of 1970, the Occupational Safety and Health Administration ("OSHA") is authorized to conduct workplace inspections to determine whether employers are complying with OSHA's safety and health standards. Pursuant to Section 1903.8 of OSHA's standards, "a representative authorized by [the employer's] employees" can participate in a walkaround inspection "for the purpose of aiding such inspection." While OSHA has long taken the position that the employees' certified labor union is a representative of the employees for purposes of participating in OSHA inspections, OSHA had also indicated, in a March 7, 2003 standard interpretation letter, that this right did not necessarily apply to a union that did not have a labor agreement with the employer and was not the certified bargaining agent, even when the union had filed the complaint that prompted the inspection.
Although Section 1903.8 remains unchanged, OSHA has recently departed from what has come to be accepted as a policy against participation in walkaround inspections by unions that do not have a labor agreement with the employer being inspected and are not the certified bargaining agent of its employees. In a February 21, 2013 standard interpretation letter, recently made available to the public, OSHA stated that workers at a worksite without a collective bargaining agreement may designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative during an inspection (the "February Interpretation"). In support of this position, OSHA relied on the language in Section 1903.8, which allows for participation in inspections by third-party "representative(s) authorized by employees" when such participation "is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace."
While OSHA purports to resolve confusion about the participation of unions in workplace walkaround inspections, the February Interpretation creates more questions than it answers. First, the language in Section 1903.8 regarding participation by third-party representatives requires that good cause be shown for their participation. However the February Interpretation does not explain what would constitute good cause for participation by a union that does not have a labor agreement with the employer and is not the certified bargaining agent of the employees. Second, Section 1903.8 refers to a representative "authorized" by the employees, yet OSHA offers no guidance as to how a union that has not been voted on by the employees can become authorized by the employees. Similarly, OSHA does not indicate by which employees the union can be authorized—must the representative be authorized by all of the employees on the worksite or just those in the affected area? Third, employers that receive advance notice of an inspection must inform their employees' representative of the inspection or arrange for OSHA to do so. The February Interpretation does not address how an employer discharges this duty when its employees can be represented by a union with which the employer does not have a collective bargaining agreement or other formal relationship.
While the February Interpretation creates many questions, one thing is for certain: OSHA's new position allows unions an inroad into non-union workplaces, and employers can expect unions to seize upon this opportunity. By participating in OSHA walkaround inspections, unions may collect useful knowledge about workplace issues and develop the relationships necessary to facilitate or escalate an organizing campaign. The mere presence of a union representative on a walkaround inspection may also silently signal to employees a message of union concern for workplace safety and create a perception of union influence in the workplace. As it currently stands, therefore, the February Interpretation gives unions a potentially valuable new tool to use in their organizing efforts at non-unionized facilities. Employers whose non-unionized employees request the presence of a union representative on an OSHA inspection should contact legal counsel immediately to determine their rights and options.
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