The Occupational Safety and Health Administration (OSHA) has pulled back a controversial guidance letter authorizing union officials to act as employee representatives for non-unionized workplaces during OSHA inspections.
Under the Occupational Health and Safety Act, a representative of the employer and a representative authorized by employees are allowed to accompany a Compliance Safety and Health Officer (CSHO) during the physical inspection of any workplace. OSHA Standard 29 CFR 1903.8 further clarifies that “The representative(s) authorized by employees shall be an employee(s) of the employer,” although it also states that a third party who is not an employee may accompany the compliance officer if their presence is “reasonably necessary “to complete a thorough physical inspection. The examples given of a “reasonably necessary” third party within the regulation are an industrial hygienist or a safety engineer, i.e. persons whose specific expertise would allow them to assist in identifying potential safety hazards within a workplace. The presence of a third party must also be authorized by the inspecting CSHO.
On February 21, 2013, OSHA Deputy Assistant Secretary Richard E. Fairfax issued a public guidance letter in response to Steve Sallman of the United Steel Workers International Union. Sallman had written OSHA to ask if workers at a workplace without a collective bargaining agreement could authorize “a person affiliated with a union or a community organization” as their employee representative.
Fairfax answered in the affirmative, stating, “It is OSHA’s view that representatives are ‘reasonably necessary’ when they will make a positive contribution to a thorough and effective inspection.” He cited several ways in which an employee representative who is not an employee or a collective bargaining agent could make such a contribution, including “instances where non-English speaking workers want a representative who is fluent in both their own language and English” or simply instances in which “the trusted presence of a representative of their own choosing” would allow workers to feel more comfortable talking to an OSHA officer.
On April 25, 2017, the Director of Enforcement Programs for the Department of Labor, Thomas Galassi, issued a Memorandum for Regional Administrators withdrawing the 2/21/13 letter as “unnecessary.” Instead of referring to withdrawn letter and further documentation supporting it, OSHA administrators should consult the “express guidance in the statute and the applicable regulation” – that is, the plain language which states that the employee’s representative “shall be an employee of the employer,” and that a third party non-employee may accompany an inspection where “reasonably necessary.”
Although this rescission of the 2/21/13 letter will likely cause employers to breathe a sigh of relief, the withdrawal of this guidance will not actually have much of a material effect, as in practice it resulted in vanishingly few instances of non-representative unions attempting to participate in workplace inspections. It does, however, signal a turn towards a more business-friendly atmosphere under the current administration. With R. Alexander Acosta finally confirmed and on the job as the new U.S. Secretary of Labor, employers can expect more of such decisions to come.