By Eric J. Conn
Employers need to be aware of a new possibility that union representatives may attempt to accompany OSHA compliance officers during workplace inspections, including at workplaces where the union has not been elected to represent the employees.
29 U.S.C. § 657(e) of the OSH Act authorizes a “representative of the employer and a representative authorized by [the employer’s] employees” to accompany the OSHA agent during an inspection of the workplace. The OSH Act specifies that the purpose of including these representatives is to help OSHA conduct an effective workplace safety inspection. However, OSHA’s implementing regulations, specifically 29 C.F.R. § 1903.8(c), require that the employees’ representative must himself be an employee of the employer, unless the individual participation is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The regulation focuses on the third party’s technical expertise by listing “industrial hygienist [and] a safety engineer” as examples of non-employee representatives who may qualify under 29 C.F.R. § 1903.8(c).
On April 5, 2013, OSHA published a formal Interpretation Letter (dated February 21, 2013) ignoring the language of 29 C.F.R. § 1903.8(c) and expressly permitting employees at a worksite without a collective bargaining agreement to designate a union representative as their personal representative during an OSHA inspection. The Interpretation Letter not only flies in the face of the plain meaning of 29 C.F.R. § 1903.8(c), but it also contradicts:
- The OSH Review Commission’s Rules of Procedure;
- the National Labor Relation Act (NLRA); and
- OSHA’s Field Operations Manual (FOM).
Section 9 of the NLRA explains that only a union selected by a majority of employees for the purposes of collective bargaining can be considered an authorized employee representative. Continue reading