A recent Occupational Safety and Health Act development could have significant impact on union organizing campaigns. In a Standard Interpretation letter dated February 21, 2013, OSHA Deputy Assistant Secretary Richard E. Fairfax wrote that nonunion employees can designate a union representative to participate in an OSHA inspection at their work site:
The OSH Act authorizes participating in the walkaround portion of an OSHA inspection by "a representative by [the employer’s] employees." 29 U.S.C. § 657(e). Therefore, a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walkaround representative so long as the individual has been authorized by the employees to serve as their representative. This right, however, is qualified by the Secretary’s regulations, which allow OSHA compliance officers (CSHOs) to exercise discretion over who participates in workplace inspections.
The Interpretation states that "there may be times when the presence of an employee representative who is not employed by that employer will allow a more effective inspection." According to Fairfax:
It is OSHA’s view that representatives are "reasonably necessary" when they will make a positive contribution to a thorough and effective inspection.
And, as you point out, there are numerous ways that an employee representative who is neither an employee of the employer being inspected nor a collective bargaining agent could make an important contribution to a thorough and effective inspection. This could be because of the representative’s experience and skill, for example because of experience evaluating similar working conditions in a different plant. There are also many instances where non-English speaking workers want a representative who is fluent in both their own language and English, something that will facilitate more useful interactions with the CSHO during the inspection. Finally, workers in some situations may feel uncomfortable talking to an OSHA CSHO without the trusted presence of a representative of their choosing.
This OSHA Interpretation is significant to labor relations because it appears to dilute OSHA’s own regulations requiring that the employee representative be employed by the employer being inspected except in limited circumstances. Specifically, 29 C.F.R. § 1903.8(c) states:
The representative(s) authorized by employees shall be an employee(s) of the employer. 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.
(emphasis added). The Interpretation is also inconsistent with OSHA’s 2011 Field Operations Manual (CPL 02-00-150), which states:
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 the walkaround. If selection of such an employee is impractical, CSHOs shall conduct interviews with a reasonable number of employees during the walkaround.
Moreover, the manual states that even where the employees involved are covered by a collective bargaining agreement, the representative chosen by the union must still be an employee of the employer pursuant to 29 C.F.R. § 1903.8(c).
As a result of this apparent relaxing of the requirements in Section 1903.8(c), the Interpretation may well encourage unions to use OSHA complaints and inspections as an organizing tool to get both access to an employer’s facility and additional exposure to its employees during organizing campaigns. Indeed, according to the Interpretation, all that will be required to satisfy the "good cause" requirement of Section 1903.8(c) is some employees expressing discomfort at talking to the OSHA inspector without a union representative.
Consequently, employers should monitor how this Interpretation is applied, especially at facilities where there are plant safety committees, to determine if the creation of such a committee and other measures, if any, can be taken to minimize the likelihood that an OSHA inspector will permit a union representative to serve as the employees’ representative during an inspection.