United States: OSHA: Union Representatives May Participate In Walkaround Inspections In Non-Union Companies

[A] representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the ... [OSHA] representative during the physical inspection of the workplace ... for the purpose of aiding the inspection. Where there is no authorized employee representative, the... [OSHA] representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.

(b) If there is no authorized representative of employees, or if the Compliance Safety and Health Officer is unable to determine with reasonable certainty who is such representative, he shall consult with a reasonable number of employees concerning matters of safety and health in the workplace.

(c) The representative(s) authorized by employees shall be an employee(s) of the employer...

A. Walkaround Representatives.

 Persons designated to accompany CSHOs during the walkaround are considered walkaround representatives, and will generally include those designated by the employer and employee.

1. Employees Represented by a Certified or Recognized Bargaining Agent.

 During the opening conference, the highest ranking union official or union employee representative onsite shall designate who will participate in a walkaround. 

2. No Certified or Recognized Bargaining Agent.

Where employees are not represented by an authorized representative, there is no established safety committee, or employees have not chosen or agreed to an employee representative for OSHA inspection purposes (regardless of the existence of a safety committee), CSHOs shall determine if other employees would suitably represent the interests of employees on a walkaround.  If selection of such an employee is impractical, CSHOs shall conduct interviews with a reasonable number of employees during the walkaround.

 3. Safety Committee.

Employee members of an established plant safety committee or employees at large may designate an employee representative for OSHA inspection purposes."

The new interpretation letter also raises many questions that have not yet been addressed and may lead to legal issues including: 

• who is an appropriate employee representative; 
• who makes the determination that the selected individual(s) is an appropriate employee representative;
• do the employees get to vote for the employee representative and does the selected individual have to receive a majority of the employee votes at the facility;
•  if one or more employees object to the selected representative, does it void the selection;
• do different groups of employees get to select their own representative;
• how many employee representatives can be present during an investigation;and
• what rights do the non-employee representatives have during the inspection? (i.e. being present during managers and supervisor's interviews).

Possible Responses To OSHA's New Interpretation

It's important to note that worksites that have formal safety committees in place may be less susceptible to the application of this new interpretation in its OSHA walkaround inspection process.  Under the FOM, the safety committees can designate the employee representatives for the facility, which would make it more difficult for the OSHA inspector to choose an outside union organization.  If your company does not have a safety committee already in place, you may want to consider establishing one as that committee arguably would hold the "representative" role in walkaround inspections. But when setting up safety committees employers should be aware of the National Labor Relations Act and unfair labor practice pitfalls if the safety committee is not properly implemented. 

You should also consider what trade secret, confidentiality, and safety and health measures should be in place before allowing any third party to have access to the worksite.  If the OSHA inspector does attempt to bring in a third-party as a part of the inspection, you should attempt to ascertain the reasons for that third-party selection and why the person's presence is "reasonably necessary" in conducting the OSHA inspection. 

What many employers do not know, is that they have the right to refuse a walkaround inspection on any basis and require OSHA to get a warrant.  One option for employers is to advise the OSHA compliance officer that it will permit OSHA to conduct its inspection but it is refusing entry of any third party.  OSHA may treat this as a "refusal of entry" and seek a warrant.  Since OSHA's request directly contradicts the Act and OSHA regulations, the federal district court judge reviewing the request for the warrant may not issue it. 

Remember that you will not be allowed to participate in or argue on their behalf in the "ex parte" warrant application proceedings.  If the warrant is issued you would have to decide whether to move to quash the warrant or otherwise oppose it if OSHA attempts to enforce the warrant in federal court.  While requiring a warrant might not be the most favorable approach for some employers, it may prevent the excess use of walkaround inspections for organizing non-union workforces if the warrant is ultimately quashed.

The facts are clear that the new interpretation letter directly contradicts the express language of the Act and OSHA's regulation, and adds little, if anything, to improving safety and health in the workplace.  What it does is open the door for potentially allowing an OSHA inspection to be improperly utilized as a union organizing tactic. This is one more reason why all employers must know all of their legal rights during an OSHA worksite inspection.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.