Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Four years ago, in a letter of interpretation addressed to Steve Sallman of the United Steelworkers of America (the Sallman Letter), the federal Occupational Safety and Health Administration (OSHA) changed more than 35 years of policy by stating that, during inspections of non-union workplaces, employees could be represented by anyone selected by the employees, including non-representative outside union agents.1 This interpretation contradicted the plain language of OSHA’s governing regulation, 29 C.F.R. § 1903.8(c), as well as longstanding agency guidance and past interpretations. Although it was initially believed that this might result in attempts by unions to use a flood of complaints as a basis for getting inside non-union worksites, since the Sallman Letter's February 21, 2013 issuance, only 4 or 5 instances of non-representative unions attempting to participate in OSHA inspections were publicly identified. One of those attempts resulted in the filing of a lawsuit against the changes by the National Federation of Independent Business (NFIB).
On April 25, 2017, Thomas Galassi, Director of Enforcement Programs, issued a Memorandum to Regional Administrators (MRA) withdrawing the Sallman Letter. The MRA reverts to the express statutory language of the Occupational Safety and Health (OSH) Act and OSHA’s implementing regulation, 29 C.F.R. § 1903.8(c), without offering any further explanatory guidance. The MRA also withdraws the explanatory provisions in OSHA Instruction CPL 02-00-160, Field Operations Manual (FOM) (8/2/2016), Chapter 3, Section VII.A. These changes represent a reversion to the original rules, but officially without any commentary to guide OSHA inspectors or employers.
Inspection Walkaround Rights Law
Section 8 of the OSH Act provides:
Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection. Where there is no authorized employee representative, the Secretary or his authorized representative shall consult with a reasonable number of employees concerning matters of health and safety in the workplace.2
Consistent with this authority, OSHA promulgated a regulation as follows:
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.3
Following its issuance, this regulation was consistently interpreted by OSHA to provide for accompaniment by a labor union only where such a union was certified or recognized as representing the employees under procedures established by the National Labor Relations Board.
Withdrawal of Prior Interpretation Letter Excluding Non-Representative Union
OSHA’s FOM also addressed what an OSHA inspector should do where there is “No Certified or Recognized Bargaining Agent”:
Where employees are not represented by an authorized representative, there is no established safety committee, or employees have not chosen or agreed to an employee representative for OSHA inspection purposes (regardless of the existence of a safety committee), CSHOs shall determine if other employees would suitably represent the interests of employees on the walkaround. If selection of such an employee is impractical, CSHOs shall conduct interviews with a reasonable number of employees during the walkaround.4
This provision of the FOM has been withdrawn as OSHA has suggested it will prepare a revised version of the FOM.
Conclusion and Recommendations
OSHA’s course correction back to the statutory and regulatory text is good news for employers. Unfortunately, the withdrawal of the FOM guidance means that employers will have to continue to be vigilant in reviewing attempts to bring non-employees in as part of an OSHA inspection. Employers might have to argue with the inspector about whether the regulation covers the specifics of their inspection such that a non-employee would be included.
In a politically charged organizing environment, non-union employers should ensure that their positive employee relations programs do not neglect safety and health. Establishment of a health and safety committee that includes an expressly defined representative role for participating in an OSHA inspection may not only eliminate interest in a union safety claim, but may also help prevent a non-representative union from participating in an OSHA inspection.
Reversion to the regulatory text, as highlighted in the MRA, does still allow some circumstances when a non-employee may participate in an OSHA inspection. OSHA will, however, have to justify those scenarios. When faced with the prospect of OSHA inviting a third party along for an inspection, non-union employers should carefully consider whether to allow OSHA to proceed with the third parties or allow only OSHA to proceed and refuse entry to the third parties. Where the third parties are refused entry, OSHA’s only recourse is to consider that action refusal of entry as to OSHA and request that the Department of Labor Solicitor’s Office initiate an action for an inspection warrant. OSHA would then have to convince a court that the agency has a right to bring the third party representative or union agent onsite during the inspection. Although inspection warrants may be obtained on an ex parte basis, where the company has identified that it is represented by legal counsel and stated a legal objection to the inspection conduct, the company may participate in the warrant process or subsequently move to quash the warrant. There are no citations or penalties associated with the exercise of an employer’s rights under the Fourth Amendment, and OSHA is prohibited from retaliating based on the exercise of those rights.
Employers may insist that any outside agent entering a worksite comply with all safety and health obligations and jobsite protections. Any required training, personal protective equipment, and health examinations must be complied with before any outsider should be permitted to enter a worksite for inspection activity. Any protection for confidential information or trade secrets, potentially including signing a confidentiality agreement, must also be addressed before the inspection. In addition, employers should consider either appropriate insurance coverage or liability waivers before the third parties enter the worksite.
1 See Thomas Benjamin (Ben) Huggett, Workplace Policy Institute — OSHA Changes Course: Will Allow Outside Representatives, Including Union Agents, to Enter Non-Union Worksites During OSHA Inspections, Littler Insight (Apr. 23, 2013).
2 29 U.S.C. § 657(e).
3 29 C.F.R. § 1903.8(c).
4 FOM Chapter 3, VII.A.2 (emphasis added).