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Although OSHA has been posting fewer and fewer Interpretation Letters on its website these days, the Agency issued a doozy last month.  In an interpretation letter publicly released on April 5, 2013, the U.S. Occupational Safety and Health Administration stated a new interpretation of its regulations that now will permit employees at non-union workplaces to designate non-employees, including “outsider” union officials and/or community representatives (i.e., organizers), as their representatives for what are commonly known as OSHA “walkaround” inspections. The interpretation has generated some heated backlash from the employer community because many employers view the interpretation as a further effort by President Obama’s Administration to ease workplace access for labor unions, giving the unions more opportunities to get audiences inside non-union workplaces in order to organize them. This new interpretation arguably conflicts with an interpretation given by OSHA in 2003 and potentially contravenes the applicable provisions of the statute and regulation. Litigation may eventually decide the validity of the new interpretation.


The federal Occupational Safety and Health Act provides the following language regarding inspection representatives:

Subject to regulations issued by the ... [OSHA], 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.

(Emphasis added).

The applicable regulation provides in pertinent part as follows:

...[The Compliance Officer] shall have the authority to resolve all disputes as to who is the representative authorized by the employer and employees...
* * *
The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance and 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 conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance and Health Officer during the inspection.

(Emphasis added).

The Former Interpretation

Although the applicable regulation does not mention union representatives and instead mentions only industrial hygienists and safety engineers, OSHA’s policy until now has been to allow union representatives to be the “employee representative” but only when the inspection involves a “union” workplace. In other words, the union must be a “recognized” or “certified” representative for purposes of collective bargaining under the National Labor Relations Act (typically reflected in a collective bargaining agreement covering an appropriate bargaining unit). OSHA’s policy has been to allow this as a “blanket” substitute for exercise of judgment by the Compliance Officer for finding good cause as to “why the accompaniment by a third party who is not an employee ... is necessary to conduct an effective and thorough investigation,” as expressly required by the regulation for participation of a non-employee third party.

Reflecting this policy, OSHA’s Field Operations Manual, which provides a guideline for OSHA’s Compliance Officers conducting “walkarounds,” closely tracks the regulation but provides three distinct paths for designating representatives in inspections that are not in the regulation. Where employees are “Represented by a Certified or Recognized Bargaining Agent,” OSHA permits the highest ranking union official or representative on site to designate who will participate in the “walkaround” as the employee representative.  Where there is “No Certified or Recognized Bargaining Agent,” and there is also no established safety committee or employees have not chosen or agreed on a representative, the OSHA Compliance Officer has discretion to determine whether other “employees” would suitably represent employees. Finally, if there is a Safety Committee, the members of the committee or other employees may designate an “employee representative” for the inspection. Arguably, nothing in the OSHA regulation or the Field Operations Manual expressly permits an “outsider” labor union official to be an employee representative for a walkaround when the union is not the recognized or certified representative of the employees for purposes of collective bargaining under the NLRA.

The New Interpretation

The newly-released interpretation letter takes OSHA policy one step further, allowing a third-party-outsider representative, who is neither an “employee” nor an “authorized collective bargaining agent” into the employer’s non-union workplace. The letter was issued in response to questions from a representative of the United Steel, Paper, and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. In the letter, OSHA’s Deputy Assistant Secretary states that the OSH Act, the regulations, and the Field Operations Manual all recognize the role of an “employee representative.” He notes that such a representative can (1) file complaints, (2) request inspections, (3) participate in informal conferences on citations, (4) contest abatement periods in citations and (5) participate in contested proceedings filed by an employer. Then he notes that the Field Operations Manual explains that the representative may include any person acting in a bona fide representative capacity, including nonprofit groups or organizations.”

The Deputy Assistant Secretary then addresses walkaround inspections and states the following:

...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...
* * *
...It is OSHA’s view that [such] representatives are “reasonably necessary” when they will make a positive contribution to a thorough and effective inspection.

He then describes situations where OSHA apparently believes such a third party representative could make a positive contribution to an investigation, including experience in the industry, special non-English language skills, or making employees feel more comfortable talking to the OSHA Compliance Officer with a trusted representative of their choosing. Finally, he withdraws the 2003 interpretation letter, stating that it has created “confusion” and that it merely dealt with the fact that a non-employee who files a complaint does not have a right to participate in an inspection arising from that complaint.

The Practical Effect of OSHA’s New Interpretation

The new interpretation brings OSHA into the ongoing labor-management relations struggle on organized labor’s side, which OSHA’s own Field Operations Manual counsels against. Employer comments about the interpretation range from characterizing it as a “blatant  favor” to organized labor, to criticizing its “non-transparent” adoption without the federal “notice and comment” rulemaking process required for regulations on the other. It seems obvious that OSHA made the new interpretation without getting any evidence to support its view about the beneficial role of third party representatives in inspections. It simply said it is so, apparently relabeling opinion as purported fact. Regardless of whether OSHA is right or wrong , clearly there are serious questions as to whether OSHA is equipped to handle disputes that might arise in this context. In contrast to OSHA, the National Labor Relations Board is specifically equipped to handle representation issues in its sphere and has mechanisms in place to deal with the many and varied issues that come up in the labor-management relations context, including certification and recognition of representatives and a prohibition on employers’ assistance and support of any labor union. All of the issues related to employee representation are ripe for conflict and vehement disagreement, and even the NLRB has had difficulty finding a path that both labor and management consider balanced  and consistent with its statutory mandate.

Here, there is no doubt that the new interpretation is intended by the Obama Administration OSHA officials to give organized labor more opportunity for influence in the workplace. But with the realities of walkaround inspections, even the best laid plans may not have their intended effect. Walkaround inspections typically are unannounced, and they rely on an employer’s consent . Waiting for union representatives to arrive may often be impossible or unrealistic, and would create time for employers to prepare for the inspection. Advance notice to union officials of a walkaround would create its own set of questions and probably prompt “push back” from employers who would claim entitlement to the same notice.

Workplaces with formal safety committee structures in place probably will be less vulnerable to potential misuse of the OSHA walkaround inspection process. Employers may want to consider putting such structures in place now and vesting such committees with the “representative” role in walkaround inspections. This could head off the third party representative problem.

Employers also should consider what trade secret, confidentiality, and safety and health measures should be in place before letting the third parties have access to a workplace. This could include requiring execution of waiver of liability forms and reviewing commercial general liability insurance policies for coverage of any potential  third-party injuries.

Finally, it should be noted that an employer has the right to refuse a walkaround inspection on any basis and require OSHA to get a warrant. Neither employers nor OSHA like to see this, but this course may be taken more often if union representatives begin routinely to cause disruption, coordinate with union “salts” planted in the workforce, or overtly use walkaround inspections for organizing non-union workforces. Given the current adversarial climate of labor-management relations that has been prominent in political affairs of late, litigation challenging the new interpretation could be on the horizon.

If you have any questions, please email us at:  Bill Principe at bprincipe@constangy.com; David Smith at dsmith@constangy.com; Pat Tyson at ptyson@constangy.com; Neil Wasser at nwasser@constangy.com; Joe Murray at jmurray@constangy.com; or Wright Mitchell at wmitchell@constangy.com.  You may also reach any OSHA practice group attorney by calling 404-525-8622.

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