On April 5, 2013, the Occupational Safety and Health Administration (OSHA) released a new interpretation letter clarifying OSHA’s position that non-union employees may select any non-employee, even one “affiliated with a union” or associated with a “community organization”, to accompany OSHA compliance officers as employee representatives during inspections of an employer’s workplace. The February 21, 2013, letter responded to a request from the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial, and Service Employees International Union, and was authored by OSHA’s recently-retired Deputy Assistant Deputy of Labor, Richard Fairfax. Fairfax’s letter reasoned that language in Section 8(e) of the Occupational Safety and Health Act (OSHAct) allows participation in an inspection by a person associated with the union, even if that union has no collective bargaining agreement with the employer being inspected, so long as the individual has been authorized by the employer’s employees to serve as their representative.
Fairfax’s letter also acknowledges that an OSHA compliance officer may exercise discretion under OSHA’s applicable regulation, published at 29 C.F.R. §1903.8, to determine who may participate in an inspection as a part of the compliance officer’s right to manage the inspection. That discretion, the letter concluded, allows the compliance officer to determine when an employee representative not employed by the employer under inspection is “reasonably necessary to the conduct of an effective and thorough physical inspection”. 29 C.F.R. §1903.8(c). Such a representative is “reasonably necessary”, according to OSHA, when the compliance officer determines the person is likely to contribute positively to a thorough and effective inspection, for example, if the representative has experience and skill in evaluating similar working conditions or is fluent in the primary language of non-English speaking employees.
The practical impact of Fairfax’s letter is to open the door to unions to get their representatives in front of non-union employees in order “to show what the union can do for them” and to prompt employee organizing. That open door will allow unions to file OSHA complaints at the same time they invite non-union workers at the employer’s establishment to select one of the union’s representatives to represent them during the complaint inspection. Community organizers or activists also are likely to treat the Fairfax letter as an invitation to manipulation of the OSHA system. Employers should be aware of this possibility and be prepared to object and to argue to an inspecting compliance officer that the union or community organization representative’s presence and participation in the inspection is not reasonably necessary and, in fact, is likely to be disruptive. If, as often will be the case, the compliance officer nevertheless allows the union representative or community activist to participate in the inspection, the employer will have laid a foundation for arguing, down the road, that the inspection was not conducted “reasonably” as required by Section 8 of the OSHA Act.© MICHAEL BEST & FRIEDRICH LLP