A new interpretative letter issued by the Occupational Safety & Health Administration (OSHA), dated February 21, 2013, but publicly released months later, has created a buzz in both safety and health, and labor law circles because of its potential impact on non-union employers and union organizing efforts. The letter, sent by Richard Fairfax (then deputy assistant secretary of OSHA, now retired), was issued in response to an inquiry from a representative of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.
The union representative had asked whether workers at a workplace without a collective bargaining agreement could authorize a person affiliated with a union or a community organization to act as the “employees’ representative” under the Occupational Safety and Health Act of 1970. In such a situation, the union individual could represent non-union workers as a “personal representative” and also accompany the employee(s) on an OSHA inspection, as well as serving as the workers’ “walkaround representative” during such inspections.
Fairfax responded in the affirmative, saying that the agency’s regulations implanting the OSH Act, as well as the OSHA “Field Operations Manual” all recognize the role of an employee representative, who can represent workers’ interests in enforcement-related matters. Such representatives can file complaints on behalf of employees, request workplace inspections, and participate in informal conference (settlement meetings requested by the employer) to discuss citations, and also participate in the actual contest proceedings (trials). The Field Operations Manual also explains that the employee representative “may include any person acting in a bona fide representative capacity, including nonprofit groups or organizations.”
To the specific issue of allowing a union-affiliated person to serve as the walkaround representative of workers who are not union and therefore are not covered by a collective bargaining agreement, the OSHA interpretative letter again affirms such a right, subject to the agreement of the OSHA compliance officer (inspector), who is given discretion over who participates in workplace inspections and investigations.
Section 8(e) of the OSH Act provides that a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary of Labor or his authorized representative during the physical inspection of any workplace, for the purpose of aiding such inspection. The implementing regulations, published at 29 CFR 1903.8, qualify the walkaround right in order to allow OSHA to manage inspections effectively, and so allow the inspector conducting the activity to determine who can participate. The decision is, therefore, not solely within the control of either the employer/site owner, or the workers.
Although OSHA’s regulation on the subject acknowledges that most employee representatives for inspections will be employees of the company being inspected, Fairfax said there may be time when the presence of a non-employee representative will “allow a more effective inspection” when, in the judgment of the OSHA Inspector, such a representative is “reasonably necessary” to conduct a thorough physical inspection of the worksite. He added that a union representative at a non-union worksite could make “important contributions” to an inspection because of the union rep’s “experience and skill” in evaluating working conditions at a different worksite, or by being fluent in both English and the workers’ native language to facilitate more “useful interactions” with the inspector. Finally, workers in some situation “may feel uncomfortable talking to an OSHA [inspector] without the trusted presence of a representative of their own choosing,” Fairfax wrote.
In 2003, OSHA had issued another interpretative letter on the subject, which said that a non-employee representative who filed a complaint with OSHA did not automatically have a right to participate in the inspection arising from the complaint. In light of the new holding, OSHA is withdrawing the 2003 interpretation.
For those wondering whether this interpretation of the OSH Act can be challenged legally, it is worth noting that OSHA is simply taking a page out of the Mine Safety & Health Administration (MSHA) playbook. In 2006, the U.S. Court of Appeals held, in Secretary of Labor v. Wolf Run Mining Co., that the Mine Act (with similar language on walkaround rights as the OSH Act) “does not, in any way, restrict who may serve as a miners’ representative,” and “nothing on the face of the Mine Act or its regulations bars [a labor organization] from being designated as a miners’ representative for mine inspections and investigations.” In that case, the employer argued that the union could abuse its role as a miners’ representative and try to revive its organizing efforts at the mine. But the court found that remedies were available if it did. The mine operator’s argument, that forcing it to allow union representatives into its mine would violate its property rights, also was rejected.
What fallout will result from this expansive interpretation of “employee representative” remains to be seen, as well as whether this will allow a new variety of “salting” activities to occur under the guise of assisting safety and health inspections. Salting is a union organizing tactic where a person gets a job at a non-union workplace with the sole intent of organizing a union. Under current labor law, if such “salts” are believed not to be “genuinely interested” in obtaining the job, they can be fired. Now, under OSHA’s interpretation, an organizer would not even have to go to the pretense of being hired but could instead infiltrate a non-union workplace through getting at least one worker’s consent to be appointed as the employee’s “representative” for OSHA purposes. Stay tuned! ■
About The Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employers in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, June 2013
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