By Aaron Gelb, Eric Conn, and Ashley Mitchell

Consistent with the Biden Administration’s promise to be “the most labor friendly administration” in history,” OSHA recently announced plans to publish a notice of proposed rulemaking (“NPRM”), as early as this Spring, to amend 29 CFR 1903.8(c), which is the regulation governing the rights to participate in OSHA inspections by non-employees of the inspected employer.

OSHA-savvy employers may remember that OSHA tried during the Obama/Biden Administration to give union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013, commonly referred to as “the Fairfax Memo.”  The interpretation letter responded to an inquiry by a labor union about inspection rights:

“May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

The question must be considered in the context of the existing regulatory text of 29 C.F.R. 1903.8(c):

“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance 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 the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

Notwithstanding a pretty clear regulatory limitation to third party inspection participation rights, OSHA’s responded to the unions interpretation request in the affirmative, explaining that notwithstanding:

“Although the regulation acknowledges that most employee representatives will be employees of the employer being inspected … it is OSHA’s view that [non-employee] representatives are ‘reasonably necessary’ when they will make a positive contribution to a thorough and effective inspection.”

Seeking to explain its reasoning, OSHA emphasized that the OSH Act recognizes the role of an employee representative to represent employee interests in enforcement related matters. Specifically, the employee representative, OSHA asserted, need not be a co-worker at the worksite. The employee representative could include any person (including community organization members) who acts in a bona fide representative capacity.  OSHA clarified that non-union employees may have a union representative act as their employee representative, under Section 8 of the OSH Act, although the union representative must be duly authorized by the employee to act as his representative.  OSHA also maintained that it may exercise its discretion under 1903.8(c) to allow a non-employee representative when that person will make a positive contribution to the inspection, including in situations where there is a non-employee representative who is skilled in evaluating similar working conditions or fluent in another language.

This interpretation moved away from that commonsense reading of the regulation and OSHA’s historical interpretation of it, and expressly invited the involvement of non-technical union representatives, even from unions who were not elected to represent the workforce.  It is quite a leap from the regulation that only allows participation by non-employees who are technical experts, like industrial hygienists and safety engineers, and whose participation is “reasonably necessary to the conduct of an effective and thorough physical inspection,” to OSHA’s position that would allow non-technical expert union representatives to participate whenever OSHA thinks they could “make a positive contribution to” the inspection.  While the regulatory text does grant OSHA some degree of latitude to include third parties in their inspections, it is pretty clear that the third party must have some type of technical or other expertise or area of specialization (e.g., engineer or industrial hygiene, or perhaps a language interpreter).  That leaves little room to justify OSHA’s position in the 2013 interpretation letter that a union representative who is not employed at the workplace could be deemed reasonably necessary.

Industry representatives filed a legal challenge to the interpretation letter, asserting that it was so inconsistent with 29 C.F.R. 1903.8(c) that it is effectively attempting to rewrite the regulation without formal APA notice-and-comment rulemaking.  Ultimately, as the reigns at OSHA were handed over to the Trump Administration, the controversial interpretation letter was rescinded.

Now, as with so many policies and regulations, the Biden Administration’s OSHA is attempting to rollback the Trump rollbacks.  In this instance, OSHA is not only reviving the concepts set forth in the controversial 2013 interpretation letter, but is seeking to formally amend the regulation itself.  OSHA’s intention with this rulemaking was made clear in the Administration’s Fall Regulatory Agenda:

“This rulemaking will clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the Compliance Safety and Health Officer such person is reasonably necessary to an effective and thorough physical inspection.”

For now, at least, union representatives at non-unionized workplaces do not have the legal right to participate in an OSHA inspection.  If adopted, this rule will again change the inspection landscape. First, having an outside community or union activist in your worksite during an inspection may strain employers’ abilities to cast their workplaces in the most favorable light. Second, non-union employers should be prepared for the possibility that union representatives will gain, through participation in an OSHA inspection, useful knowledge, or relationships to facilitate an organizing campaign.

If the union walkaround rule becomes the new normal, there are five steps we recommend employers take to put themselves in a better position to respond to this scenario where union or labor activists show up with OSHA for an OSHA inspection:

1. 1. If your company is committed to remaining union-free, keep tabs on union activity in your area and your industry, train your supervisors on union organizing tactics so they know what to do if they see signs of organizing or someone attempts to hand them a batch of authorization cards, as well as what not to do so you can avoid unfair labor practice allegations. And reach out to your labor lawyer (or ask us to introduce you to our Labor and Employment team at CMC) and discuss what you can and should do now to prepare for a possible organizing drive.

1. 2. Establish a safety committee (or reinvigorate the one you already have) and ensure that it includes non-supervisory employees. Conduct regular meetings, take notes, and post those notes so everyone can review them and know what the committee is doing.  Make sure employees know who is on the committee and consider posting their names and work contact information, while encouraging employees to reach out to committee members with questions or concerns (and training the committee members what to do if a concern is brought to them).  Having a committee with management and worker members enables you to suggest that a committee representative is a far better option to assist the CSHO with their inspection than a union representative who does not work for your organization.  You may also want to consider specialized work groups (e.g., machine safety, fall protection, chemical safety) that focus on unique or challenging hazards in your workplace.  That way, if OSHA shows up to conduct an Amputations National Emphasis Program inspection, for example, who better to assist the CSHO than a member of your Machine Safety Working Group?  If you have a multilingual workforce, consider identifying employees are willing and able to serve as interpreters in the event of an inspection, so OSHA cannot suggest a union representative as the interpreter.

1. 3. Open the lines of communication with your employees with respect to workplace safety and health matters. It is well-known that employees often seek out union representation when they do not feel they have a voice, so look for ways to ensure they know that you are listening to and acting on their concerns.  Create and disseminate an Open Door Policy if you do not already have one.  Install suggestion boxes in locations where employees can place a comment card in the box in relative privacy (like a locker room).  Set up an online reporting platform that allows for anonymous complaints (as well as a toll-free hotline because not everyone has access to a computer or can readily use a smart phone) and, ideally, enable them to anonymously track the response to their concern using a unique code assigned to their concern.

1. 4. Prepare for a possible OSHA inspection by identifying and training the team of management officials who will respond to and participate in any OSHA inspection. Ensure every member of the team knows what to do from the second OSHA arrives on site, including where and for how long they should wait while the necessary individuals are contacted and assembled.  Retain experienced OSHA counsel in advance so you are not scrambling to find and retain counsel on the fly, and make sure every member of the designated inspection team knows when and how to contact counsel.  The inspection should be trained on each facet of an OSHA inspection, paying particular attention to the importance and objectives of the opening conference.

1. 5. Decide on a warrant strategy. Reasonable minds differ on when and whether to insist on an administrative inspection warrant versus consenting to an inspection and seeking instead to focus on managing/negotiating the scope of the inspection.  As Conn Maciel has discussed at length in its webinars on managing inspections, defining the scope of an inspection—typically in the opening conference—is essential and one of the most effective ways to increase the likelihood of a more successful outcome.  Warrants, in most cases, are rarely demanded.  These considerations, however, will likely change if OSHA CSHOs begin bringing non-employee union representatives along with them for site inspections.  Indeed, employers that suspect the union representative is there for the express purpose of organizing may well view insisting on a warrant (and opposing it) as a no brainer.  The key to employing such a strategy effectively lies in knowing in advance what your organization will do in a variety of circumstances and being prepared to propose a compromise of sorts where consent is given to the CSHO entering the premises, but no third parties.