Author: Roger Kaplan
Organized labor may be very pleased with the Occupational Safety and Health Administration these days because of a recent Agency interpretation that a non-union employee may select a non-employee who is “affiliated with a union” or with a “community organization” to act as his representative during an OSHA inspection of his employer’s worksite. The interpretation came in a response to a letter from a health and safety specialist for the United Steelworkers on February 21, 2013. The interpretation could be used by unions, their supporters and “salts,” as an invitation to trigger OSHA inspections at targeted union-free facilities for the purpose of gaining access for organizing, with OSHA’s help. (A “salt” is a union infiltrator sent to work at a non-union employer with the objective of organizing its employees.)
The Agency seized on language in the OSH Act [Section 8(e), 29 USC § 657(e)] that “a representative authorized by [the employer’s] employees” may accompany an OSHA compliance officer on his or her inspection. This may be stretching the statute too far, in our view . OSHA regulations interpreting this provision (29 C.F.R. §1903.8) contemplate that such a representative “shall be an employee(s) of the employer.” The same regulations appear to use the “representative authorized” phrase to mean an “authorized representative of employees,” as well. The latter expression is indistinguishable from “authorized employee representative,” used elsewhere in OSHA’s rules to mean “an authorized collective bargaining agent of employees.” (See Recordkeeping Rule, 29 C.F.R. §1904.35). A stranger-union organizer is neither an employee of the employer nor an authorized collective bargaining agent of its employees.
The regulations allow an OSHA compliance officer, for “good cause,” to be accompanied by a third-party who is not an employee, but the examples offered include “an industrial hygienist or a safety engineer” – not union business agents and organizers – and there are plenty of technical specialists available to OSHA who are not affiliated with unions. OSHA’s Field Operations Manual, also mentioned by OSHA in its February 21 interpretation, was revised during the Obama Administration to remove a Clinton-era restriction that employee representatives during inspections on non-union worksites had to be members of a workplace safety committee or an individual employee selected by his/her coworkers for the purpose. It also withdrew a 2003 OSHA interpretation rejecting the right of a non-employee who files an OSHA complaint to participate in the resulting OSHA inspection -- to avoid confusion, it said. Compliance officers have discretion as to who may accompany them on an inspection, but it is unclear what guidance they will take from this letter.
With its questionable spin on statutory and regulatory language, OSHA joins the NLRB in laying out a welcome mat for union organizers at union-free plants. Unions may say this interpretation is nothing new, but we are not so sure. Non-union employers may have to weigh carefully whether to allow non-employee union or community organizers on their premises during OSHA inspections or to refuse them access and risk citations and penalties.