Guess Who Is Coming to Inspect Your Worksite?

As part of an OSHA worksite inspection, who has a right to come onto your premises other than a federal OSHA inspector? Until recently, there were two possibilities. First, if the OSHA inspector determined there was “good cause” because of unique circumstances, a non-employee such as an industrial hygienist or safety engineer with specific expertise could be brought along. Second, if the workplace was unionized, then a union representative was allowed to accompany the OSHA inspector during the walk-around inspection. No one would ever have guessed that in a non-union worksite, an outside union agent might be permitted to accompany the OSHA inspector in a walk-around inspection. Well, that all changed in Spring 2013.

In an interpretation letter publicly released on April 5, 2013, OSHA announced for the first time that non-union employees have the right to be represented by a union representative when OSHA inspects a workplace, even if no collective bargaining agreement exists. It has always been true that an employee “personal representative” can file a complaint on behalf of the employees, and can request workplace inspections and participate in any informal conferences to discuss citations and challenge the abatement periods in citations if contested by the employer. However, in 2003, OSHA issued an opinion and stated that a non-employee who filed a complaint did not have the right to participate in a walk-around inspection connected to that complaint.

Now, ten years later, OSHA asserts its regulations explicitly allow walk-around participation by an employee representative who is not an employee of the employer when, in the judgment of OSHA, such representation is “reasonably necessary to conduct an effective and thorough physical inspection.” How did it reconcile this position with the 2003 opinion? First, OSHA pointed out that this earlier letter did not address the rights of workers at that facility without a collective bargaining agreement to have a representative of their own choosing in the inspection. Second, OSHA “withdrew” this 2003 opinion to avoid any “confusion.” In other words, the new Administration simply changed its mind.

As you might expect, this policy change is being hailed by labor unions, and could be used to their advantage during an organizing campaign. One big concern that arises from OSHA’s new interpretation is that if a union organizer is allowed on the premises, his presence will send a message to non-union employees that the union must have some real power beyond the control of the employer if one of its organizers must be let on company premises. This concern will be a particular issue if the union is attempting to mount a union organizing campaign or a campaign is actively underway.

Interestingly, this new interpretation appears to directly conflict with OSHA’s inspection regulations, Section 1903.8, which reads, in part, as follows:

(b) If there is no authorized representative of employees, or if the Compliance Safety & 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 …

The new interpretation raises many practical questions which are left unanswered, including:

• Who makes the determination that a representative is needed and/or that the individual selected is an “appropriate” employee representative?
• Do employees hold a vote for this representative, and does the selected “representative” have to receive a majority of employee votes at the facility?
• If one or more employees object to the person selected as a representative, does this objection void the selection?
• Do different groups of employees get to select their own representative?
• How many employee representatives can be present during an investigation?
• What rights do the non-employee representatives have during the inspection?

Given that this new “interpretation” conflicts with some of OSHA’s own regulations, an employer has a proper basis for objecting if a union organizer attempts to participate in an on-site OSHA inspection. It is critically important, however, that the company make it clear to OSHA that the company intends to cooperate with the inspection and will allow the OSHA compliance officer to conduct the inspection of its facilities, even though it intends to deny access to the union representative. At a minimum, you should ask the inspector why this union representative will be beneficial during the inspection, and require OSHA to articulate exactly why this particular individual should be allowed on your worksite. If a company refuses to allow the union representative on its premises, OSHA may choose to leave and seek a warrant. Should this occur, it will be important for the company’s lawyer to communicate with OSHA’s counsel to make it clear that OSHA is welcome to inspect and to explain that there has been a failure of any showing as to why a union representative would add any value to the inspection.

In analyzing the “explanation” to justify an “outsider” on company premises, OSHA’s recent letter suggests several ways that a third party could be “helpful”: (i) s/he brings special experience and skill in evaluating similar working conditions in a different plant, (ii) there are non-English speaking workers who want a representative who is fluent in their language and English in order to facilitate useful interactions with the inspector, and/or (iii) employees have expressed that they are not comfortable talking to OSHA without a trusted individual present.

Worksites where formal safety committees are in place may be less susceptible to the application of this new interpretation of OSHA’s walk-around inspection process. Under the OSHA Field Operations Manual, a safety committee can designate one of its members as a representative for the facility. If this situation exists and a representative is selected, it should make it more difficult for the OSHA inspector to recognize an outside union member as the representative. If your company does not have a safety committee already in place, it may be wise to consider establishing one to avoid having an “unwanted guest” as your selected representative for walk-around purposes.

For further information regarding the rights of an employer under OSHA or the National Labor Relations Act, contact David Paxton at 540.983.9334, or a member of Gentry Locke’s Employment or OSHA team: Todd Leeson, Brett Marston, Josh Johnson, and John Thomas.