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OSHA: Unions may represent nonunion workplaces during inspections

The U.S. Occupational Safety and Health Administration (OSHA) released an interpretation letter April 5, 2013, clarifying that nonunion employees can select anyone, including nonemployee union representatives, to accompany OSHA officials during safety inspections of their employer’s worksite.

OSHA Deputy Assistant Secretary Richard Fairfax stated in the letter that OSHA allows workers at establishments without collective bargaining agreements to designate who will act on their behalf during inspections.

The letter, dated Feb. 21, 2013, was in response to a request from Steve Sallman, a health and safety specialist with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union.

Sallman had asked whether workers at a nonunionized workplace could authorize a person affiliated with a union to act as their representative under the Occupational Safety and Health Act. This would include “representing the employee(s) as a personal representative” and “accompanying the employee on an OSHA inspection” in a nonunionized workplace.

Fairfax responded affirmatively that employees in a workplace without a collective bargaining agreement may designate a union-affiliated individual to act as their personal representative. In this capacity, nonemployee personal representatives may file complaints on behalf of an employee, request workplace inspections, participate in informal conferences, contest the abatement period in OSHA citations and participate in contest proceedings.

As for nonemployees accompanying OSHA officials during inspections, the actual OSHA standard states: “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.”

Even though the standard makes no reference to union representatives, Fairfax interpreted this to mean that a person affiliated with a union without a collective bargaining agreement can act as a walkaround representative on behalf of employees provided that the employees authorized the individual to do so and the OSHA inspecting officer approved the arrangement.

Critics of labor overreach fear that the interpretation may encourage unions to use OSHA complaints and inspections as an organizing tool to gain access to an employer’s facility and exposure to its employees.

About 94 percent of the private sector is not unionized, said Michael J. Lotito, SPHR, a shareholder at Littler Mendelson, based in San Francisco.

Lotito said that organizations’ focus on safety with proactive training and education programs should help minimize employees’ resorting to third parties when inspections take place. Establishing safety committees is another good idea, he said. “Give the employees as many internal avenues for a voice as possible.”

Roy Maurer is an online editor/manager for SHRM. Follow him on Twitter @SHRMRoy.

©2013 SHRM. All rights reserved.

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