Labor union membership in the private sector remains near record lows these days. As a result, unions are forced to devise new and creative ways to gain access to 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, says Chicago attorney Mark A. Lies II, 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. Lies is a partner in the law firm of Seyfarth Shaw LLP, and he is joined by Kerry M. Mohan, an associate with the firm, in voicing these positions.
Under this recent guidance, say Lies and Mohan, non-unionized employees can select a union organizer or community activist to be the employees’ walk-around representative during OSHA inspections. In light of this development, host employers can expect unions to use this interpretation to attempt to gain access to employer facilities. Furthermore, OSHA is expected to support employee requests to have unions as employee representatives during an OSHA inspection.
According to the Occupational Safety and Health Act, its regulations, and OSHA’s Field Operations Manual, employees are authorized to select an “employee representative” to participate in the walk-around portion of an OSHA inspection. This walk-around representative can follow the OSHA inspector, ask questions, talk to the inspector, and identify potential hazards. Where the contractor is a union shop, the union typically has a designated individual for all OSHA inspections.
In non-unionized employers, the employee walk-around representative may be a senior individual that is part of the employer’s safety committee, or no employee at all. However, says Lies, in practice it has long been understood that the “employee representative” needed to be an actual employee and not someone from the outside. Although some OSHA offices have tried to permit non-employees to take part in inspections at non-union sites, they almost always have withdrawn this request when questioned about their authority to permit the non-employee’s access.
But now, under this 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 walk-around representative. And that can be a union representative or a “community representative,” a technical person, or someone else. This reinterpretation of the OSHA Act and regulations potentially provides union organizers unprecedented access to a non-unionized employer’s site.
For example, 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 officer allow the same union representative, who is not an employee, to come onto the site and be their employee walk-around representative.
Similarly, a community representative or 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 OSHA compliance officer does not have to allow this individual if he feels the person will disrupt the inspection.
Dangers Involved
Lies and Mohan say there are dangers in permitting non-employee walk-around representatives. 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 OSHA compliance officer. As such, the union representative likely will identify any potential citation or hazard and tell the compliance officer.
Second, the union’s involvement gives the union an immediate presence within the employer’s facility to communicate with the employees 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 present. Third, it provides unions and activists the opportunity to take video or photos of an employer’s operation that can be used for union promotional purposes.
To limit the potential of a non-employee union representative or community activist from participating in an OSHA inspection, employers should consider taking the following precautions or actions, say Lies and Mohan.
Have employees identify an employee walk-around 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 walk-around 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.
Challenge the non-employee’s credentials. 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. An employer, however, can challenge the non-employee’s 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 meet certain administrative requirements. If OSHA is going to permit a union representative or activist to the be the walk-around representative, the employer can subject that individual to 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 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 walk-around. Consider retaining an expert who can follow the non-employee and challenge any statements or observations he or she 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.
In conclusion, 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.
