Welcome in! OSHA’s New Guidance Permits Union Representatives During OSHA Inspections

I. Introduction 
 
 Private-sector union membership remains near record lows, forcing unions to devise new and creative ways to access employer’s facilities to organize employees. Unions have long used OSHA safety and health complaints as a tool to pressure employers into recognizing a union at a non-unionized facility or to affect collective bargaining at a unionized facility. However, a recent OSHA Letter of Interpretation from former Deputy Assistant Secretary Richard E. Fairfax has potentially made it easier for unions to organize non-union facilities. Under this recent guidance, non-unionized employees can select a union organizer or community activist to be the employees’ walkaround representative during OSHA inspections. In light of this development, host employers can expect unions to use this interpretation to attempt to access employer facilities, and OSHA to support employee requests to have unions as employee representatives during an OSHA inspection.

II. Employee Representatives During OSHA Inspections
The Occupational Safety and Health Act, its regulations, and OSHA’s Field Operations Manual authorize employees to select an “employee representative” to participate during the walkaround portion of an OSHA inspection. During the inspection, the walkaround representative is permitted to follow the OSHA inspector, ask questions, talk to the inspector, and identify potential hazards. In unionized facilities, the union typically has a designated individual for all OSHA inspections. 

 In non-unionized facilities, the employee walkaround representative may be a senior, well-respected individual that is part of the employer’s safety committee, or no employee at all. However, in practice, it has long been understood that the “employee representative” needed to be an actual employee and not somebody from the outside. Although some OSHA offices have attempted to permit non-employees to participate in inspections at non-unionized facilities, they have almost always withdrawn this request when questioned about their authority to permit the non-employee’s access. 

III. OSHA’s New Letter of Interpretation On “Employee Representatives”
 In OSHA’s new letter of interpretation, OSHA states that where employees are not represented at a workplace by a union, one or more employees may designate anyone they choose to be their employee walkaround representative, including a union representative or a “community representative”, a technical person, etc. This re-interpretation of the OSH Act, OSHA’s regulations, and OSHA’s Field Operations Manual potentially provides union organizers unprecedented access to a non-unionized employer’s facility. For instance, a union can file an OSHA complaint on behalf of non-unionized employees and remain in contact with OSHA until the inspection occurs. Then when OSHA shows up at the facility, the employees may request that the OSHA compliance safety and health officer (CSHO) allow the same union representative, who is not an employee, to come into the plant and be their employee walkaround representative. 

Similarly, a community representative (activist), who is not an employee, could be designated. Such an individual could have economic, social or political interests that are adverse to those of the employer. The CSHO does not have to allow this individual if he feels the person will potentially disrupt the inspection.

IV. Dangers Of Permitting Non-Employee Walkaround Representatives
The participation of a union representative or community activist in an OSHA inspection can lead to significant issues. First, the non-employee’s participation will almost certainly lead to increased citations. Many large unions have sophisticated health and safety officials who may be more knowledgeable than the CSHO. As such, the union representative will likely identify any potential citation or hazard (s)he sees to the CSHO, including many the CSHO may have not observed or recognized. Second, the union’s involvement gives the union an immediate presence within the employer’s facility to communicate with employees at the facility about the union’s interest in employee safety and the benefits of a union to foster safety. The union representative may wear pro-union clothing or buttons, which will attract attention and cause employees to question why a union is there. Third, it provides unions and activists the opportunity to take video or photographs of an employer’s operation that can be used for union promotional purposes.

V. Recommendations To Limit The Potential Of A Non-Employee Walkaround Representative
To limit the potential of a non-employee union representative or community activist participating in an OSHA inspection, an employer should consider taking the following precautions or actions:

• Have employees identify an employee walkaround representative prior to any potential inspection: A non-employee representative likely cannot be named if the employees have already designated their representative. The employees’ selection can be done via an employee safety committee or an informal employee consent.

• Provide any designated employee representatives with OSHA 10 Hour or other enhanced safety training: A basis for OSHA’s new guidance is that employee walkaround representatives may not be sophisticated enough to represent employee interests during the inspection. To challenge this belief, the employer should offer to provide the employee representatives OSHA 10 Hour or other enhanced safety awareness training to ensure they are knowledgeable about health and safety issues to be able to meaningfully participate in the inspection.

• Challenge the non-employee’s credentials: Noted above, OSHA may believe that a non-employee representative may be able to better represent the employees’ interests due to his or her superior knowledge of health and safety issues. Thus, the employer can challenge the non-employee’s health and safety credentials to show that the non-employee’s participation would not only be worthless, it would actually be disruptive and confuse issues during the inspection because the individual is unqualified.

• Require the union representative or activist to following administrative requirements: In the event OSHA is going to permit a union representative or activist to the be the walkaround representative, the employer can require the union representative or activist to go through the same administrative burdens as any other visitor to the facility. Though these administrative tasks may not prevent the non-employee from participating, it may significantly limit the extent of their participation. For instance, the employer can require the non-employee individual to:
  
   

   

  • Sign a document indemnifying the employer for any injury that may occur in the facility and waiving any potential claims against the employer;
  • Agree to provide and wear all required personal protective equipment (PPE), including respiratory protection, flame retardant clothing, etc.
  • Sign a confidentiality agreement prohibiting the individual from: (1) taking any video footage or photographs within the facility; and (2) disclosing any information they obtained during the inspection; and
  • Participate in any orientation programs that are required of all non-employee visitors. 

• Obtain your own expert for the inspection: One way to silence the non-employee representative is to engage your own expert to participate in the walkaround. Consider retaining an expert who can follow the non-employee and challenge any statements or observations (s)he makes. 

• Say “No” and require OSHA to obtain a warrant: Ultimately, an employer always has the right to tell OSHA that it will allow a non-employee union representative or activist to participate in the inspection only if OSHA obtains a warrant requiring it. At that point, OSHA will be required to go before a judge to get a warrant, which may cause OSHA to reconsider its position. An employer should contact legal counsel before taking this action to discuss the risks and benefits of this strategy.

VI. Conclusion
Without question, OSHA’s new interpretation potentially provides unions with
unprecedented access to private property and non-unionized employees. Thus, employers should be prepared to confront a union representative or activist at their front door when they accompany the OSHA investigator and have a preplan to challenge the non-employee’s participation, or limit the participation as much as possible.

* Mark A. Lies, II, is a partner with the law firm of Seyfarth Shaw LLP, 131 South Dearborn Street, Suite 2400, Chicago, IL 60603 (312) 460-5877, mlies@seyfarth.com. He specializes in occupational safety and health and related employment law and civil litigation.

**Kerry M. Mohan is an associate with Seyfarth Shaw, (312) 460-5659, kmohan@seyfarth.com. His practice focuses on occupational safety and health, traditional labor matters, and related employment law and civil litigation.